Delhi District Court
State vs Piyush Kumar Etc on 21 December, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE -08
(CENTRAL), TIS HAZARI COURTS : DELHI
Presiding Officer: Ms. Meena Chauhan, DJS
FIR No. 224/2011
PS: Kotwali
U/s 279/338/420/468/471 IPC &
3/181 MV Act
State v. Piyush Kumar
CIS No.295578/2016
Date of Institution of case : 28.05.2012
Date when Judgment reserved : 24.11.2023
Date on which Judgment pronounced : 21.12.2023
JUDGMENT
a Serial No. of the case : FIR No. 224/2011 PS: Kotwali Date of the commission of b : 16.10.2011 the offence c Name of the Complainant : Naresh Tyagi Piyush Kumar Khanna s/o Sh.
Name of Accused and his
d : Ranjeev Khanna, r/o H. No. 729,
parentage and residence
Katra Neel, Nai Sarak, Delhi.
U/s 279/338/420/468/471 IPC &
e Offence complained of :
3/181 MV Act
Plea of the Accused and
f : Pleaded not guilty.
his examination (if any)
g Final Order : Acquitted under all charges
h Date of Order : 21.12.2023
BRIEF REASONS FOR DECISION:
1. In brief, the accused has been sent to face trial upon State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 1/38 the allegations that on 16.10.2011 at about 11.15 pm, at Town Hall, Nai Sarak, opposite shop no. 765, Chandni Chowk, Delhi, accused was found driving a car bearing no. DL-2CW-4989 without a valid driving license in a rash and negligent manner so as to endanger human life and personal safety of others and hit against the complainant Sh. Naresh Tyagi who sustained injuries grievous in nature and on 17.11.2011 and the accused handed over a driving license to the IO which was found to be forged document which he dishonestly used as genuine which he knew or had a reason to believe it as a forged documents during investigation for the purpose of cheating. The said allegations against the accused led to the registration of a present FIR against the accused under section 279/338/420/468/471 of the Indian Penal Code, 1860 (hereinafter called as IPC) and 3/181 Motor Vehicles Act, 1988 (hereinafter called as MV Act).
2. After completion of an investigation, a charge sheet was filed against the accused on 28.05.2012. Cognizance of the offences as mentioned in the chargesheet were taken. Copy of charge sheet and annexed documents were supplied to the accused under section 207 The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C) and thereafter charge under section 279/338/468/471 IPC and 3/181 MV Act was framed against him on 03.08.2018 to which he pleaded not guilty and claimed trial.
3. The prosecution examined six (06) witnesses to State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 2/38 substantiate allegations against the accused.
4. PW-1 Sh. Naresh Tyagi has deposed in his examination-in-chief that on 16.10.2011, he came to M/s Raymond Shop, Chandni Chowk regarding tailoring. Thereafter, at about 11 -11:15 p.m., he came outside the shop and started crossing the road. In the meantime, a car came at a high speed and hit him. He sustained several injuries. He deposed that the driver of the car who hit him was taken to the hospital in the same car. The name of the driver/accused was Piyush and he had correctly identified the accused. The police also came at the spot within 10-15 minutes of the incident. Police had recorded his statement at the hospital in this regard and the same is Ex.PW1/A, bearing his signature at point A. On the next day, he went to the spot with the police official and pointed to the spot. Police prepared the site plan at his instance. He deposed that he could not identify the car if shown to him. Four photographs of the offending vehicle were shown to the witness. After seeing the same, the witness stated that he could not say whether the vehicle in the photographs was the same vehicle who had hit him on the day of incident as he suffered injuries and due to the pain, he was not able to see the make, color, registration number of the offending vehicle. The photograph of the said vehicle is Mark P1/1 (colly).
After seeking due permission from the court, Ld. APP has cross-examined the witness. During cross-
State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 3/38 examination of the witness by Ld. APP, PW-1 deposed that he did not remember whether the registration number of the vehicle was DL-2CW-4989. He admitted that the vehicle which had hit him was coming from Maliwara Chowk and had hit me while driving at a very high speed. He admitted that the accused Piyush had taken him to the JPN Hospital after the incident. The name of the accused was disclosed to him while he was in the hospital by the accused himself. He admitted that the police official had arrested the accused in his presence vide arrest memo Ex.PW1/B, bearing his signature at point A. He deposed that he could not say whether the personal search of the accused was conducted in his presence. Personal search memo was shown to the witness. After seeing the same, the witness stated that the memo did not bear his signature. Again witness was shown the personal search memo Ex.PW1/C and a signature at point A. Witness stated that the signature at point A was his signature. He denied the suggestion that the vehicle in photographs Mark P-1/1 had hit him on the day of incident. He denied the suggestion that he could not identify the offending vehicle to save the accused from conviction or he had been won over by the accused.
During cross-examination of the witness by Ld. Counsel for the accused, PW-1 deposed that he was employed in Great India Mall at Raymond Shop at Noida. He reached Chandni Chowk around 10:30 p.m. The market State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 4/38 had already closed. He had gone to the workshop on the first floor of Sri Ram & Sons to give instructions regarding some tailoring jobs. He remained in the workshop for approximately 45 minutes. He denied the suggestion that he had consumed liquor at the workshop. He was hit by the car on the right side of his body. He deposed that the driver of the car had taken him to the hospital. The doctor might have recorded the name of the person who brought him to the hospital. In the hospital while he was being treated by the doctor the police had recorded his statement wherein he had narrated the incident of accident. The next day his brother came who took him from the hospital. The police had visited his house once or twice but nobody contacted him thereafter. The police came to his house to give him summons for this case. The police had not recorded his statement on their subsequent visit. He did not remember whether he had put his signature on the MLC conducted in the hospital. He did not remember if any documents were seized from the driver/accused by the police. He was not sure whether the accused present in the Court had taken him to the hospital or not. Voluntarily, he deposed that he was not in senses at that time and therefore, he did not know who had taken me to the hospital. Due to the said reason, he could not say that the name of the said person was Piyush or Rajiv. I was not under the influence of liquor at the time of the incident. He denied the suggestion that he was under the influence of liquor and due to the State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 5/38 said reason the sad fact was mentioned by the doctor in his MLC which is Mark A. He denied the suggestion that he was not hit by the car driven by the accused. He denied the suggestion that the accused was not driving the car nor that he had taken him to the hospital. He could not say whether the accused had been falsely implicated by the IO because of previous enmity between IO and father of the accused Sh. Ranjiv Khanna.
After seeking permission from the court, Ld. APP re-examined the witness on discrepancies related to the person who had taken him to the hospital. It was put to the witness, "During your examination/cross-examination by the State, you had said that the accused had taken you to the hospital, however, during your cross-examination by the defence you had said that you did not know who had taken you to the hospital. Which statement is correct?", to which he replied, "I had made the earlier statement during my examination under presumption that the accused must have taken me to the hospital as he is facing the trial."
5. PW-2 Sh. T. U. Siddiqui has deposed in his examination-in-chief that on 19.10.2011, he had conducted mechanical inspection of Santro Car bearing No. DL- 2CW-4989 on the request of ASI Umed Singh, PS Kotwali. His detailed report in this regard is Ex. PW2/A bearing his signature at point A. He had found fresh damages as follows:
State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 6/38 (1) front bumper damaged / bonnet pressed; (2) left fender dented / pressed;
(3) front windscreen glass broken;
The vehicle was fit for a road test.
During cross-examination of the witness by Ld. Counsel for the accused, PW-2 deposed that he did not remember who had called him, however, it was requested by SI Umed Singh to conduct mechanical inspection. He had inspected the car on 19.10.2011.
6. PW-3 Sh. Tushar has deposed in his examination-
in-chief that he has brought the summoned record i.e DL register of the year 2009 as per serial number and date wise. As per DL extract report, DL no. NT-49819 was issued in the name of Mohd. Tareeg s/o Munnawar Ali. His detailed report in this regard is Ex. PW3/A. The true copy of entry no. NT 49819 is Ex. PW3/B (OSR). As per record dated 20.04.2009, Ninety Driving License were issued by Bulandshahr Authority but none of them belongs to accused Piyush Kumar. As per both the records, Driving License Ex. P-1 was not issued by our authority in the name of Piyush Kumar. The report given by Ms. Manisha Dwivedi is Ex. PW3/C bearing his signature at point A. Cross-examination of the witness is NIL despite an opportunity being given to the accused.
7. PW-4 Ct. Chandrakant has deposed in his examination-in-chief that on 17.10.2011, he was posted as State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 7/38 Ct at PS Kotwali and he was on emergency duty. He along with ASI Umed Singh went to the incident spot i.e Nai Sadak, Town Hall as the IO received the information regarding the accident. When they reached there, we came to know that the driver of the offending vehicle took the injured to the hospital. Thereafter, on receiving DD No 2A, they reached at the JPN hospital where IO recorded the statement of the injured which is Ex.PW1/A and prepared the rukka over it and handed over the same for the registration of the FIR. He went to the PS for the registration of the FIR, after registration of the FIR, he reached the accident spot where IO was already present. He handed over the copy of the FIR and original tehrir and rukka to the IO. He arrested the accused vide arrest memo which is Ex.PW1/B bearing his signature at point B and conducted the personal search vide memo which is Ex.PW1/C bearing his signature at point B. As the offence was bailable the accused was released on the bail. IO seized the offending vehicle vide seizure memo which is Ex. PW/4 bearing his signature at point A, and also seized the insurance and RC vide seizure memo which is Ex.PW4/B and Ex.PWA/C respectively both bearing his signatures at point A. IO also seized the DL of the accused which is Ex.PW4/D bearing his signature at point A. IO recorded his statement u/s 161 Cr.P.C. PW-4 had correctly identified the accused. The photographs of the case property were shown to the witness who correctly State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 8/38 identified the same and submitted that it was the same vehicle which was seized by the IO. The photograph of the case is marked P1 (colly.) During cross-examination of the witness by Ld. Counsel for the accused, PW-4 deposed that IO seized the DL of the accused person at the incident spot i.e Nai Sadak, Town Hall. He denied the suggestion that the accused produced the original and valid DL to the IO. He denied the suggestion that the DL which was seized by the IO is not the same which the accused handed over to the IO. He denied the suggestion that the IO obtained the signature of the accused on the blank paper. He denied the suggestion that IO prepared the false seizure memo regarding the DL on the blank paper on which the signature of the accused was obtained. He admitted that the accident did not take place in his presence. He denied the suggestion that he was deposing falsely.
8. PW-5 Sh. Ranjiv Khanna has deposed in his examination-in-chief that he is the owner of the offending vehicle bearing number DL-2CW-4989. The above said vehicle was released to him on superdari by Hon'ble court 22.10.2011. The photographs of the case property were shown to the witness who correctly identified the same and submitted that it was the same vehicle which was seized by the IO. The photographs of the case property which is marked as P-1 colly. Cross-examination of the witness is NIL despite an opportunity being given to the accused.
State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 9/38
9. PW-6 Retired SI Umed Singhhas deposed in his examination-in-chief that on the intervening night of 16/17.10.2011, he was posted as ASI at PS Kotwali. On that day after receiving DD no 36 A regarding the accident, he along with Ct. Chander kant went to the spot ie Shop no. 766, Nai Sadak. When they reached the spot we found no one at the spot and thereafter, he called the caller of DD no.36A who informed him that the victim/complainant was taken to hospital. On receiving DD No 2A, they reached the JPN hospital where he collected the MLC of injured / victim Naresh Tyagi vide MLC No. 165691/11 which is Ex.A-6. He recorded the statement of the injured which is Ex.PW1/A bearing his signature at point B and prepared the rukka from point X to X1 bearing his signature at point C and handed over the same to Ct. Chander Kant for the registration of the FIR. Ct. Chander Kant went to the PS for the registration of the FIR, after registration of the FIR, he came back at the accident spot and where he was present. He handed over the copy of the FIR and original tehrir / Rukka to him. After some time, the victim / injured Naresh Tyagi arrived at the spot with his relatives and he prepared the site plan at his instance which is Ex.PW1/B bearing his signature at point A. He served notice u/s 133 MV Act to the owner namely Ranjeev Khanna of offending vehicle bearing No. DL-2W-4989 by which the Got injured which is Ex.PW6/A bearing his signature at point eafter, the owner namely Ranjiv Khanna along with State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 10/38 his son / accused namely Piyush Kumar Khanna and the offending vehicle came at Police Post Town Hall and the owner stated on the notice that on the date of alleged accident, his son / accused namely Piyush Kumar Khanna was driving the offending vehicle i.e., 16.10.2011. Complainant / victim who was present there itself also identified the accused as the one who had hit him on the alleged day of incident. He arrested the accused vide arrest memo which is Ex.PW1/B bearing his signature at point C and carried out his personal search vide memo which is Ex.PW1/C bearing his signature at point C. As the offence was bailable the accused was released on the bail. He seized the offending vehicle vide seizure memo which is Ex.PW/4 bearing his signature at point B, and also seized the insurance and RC vide seizure memo which is Ex.PW4/B and Ex.PW4/C respectively both bearing his signatures at point B. He also seized the DL of the accused which is Ex.PW4/D bearing his signature at point B. He recorded the supplementary statement of the victim u/s 161 Cr.P.C and he was discharged and also recorded the statement of other witnesses. The mechanical inspection of the offending vehicle was conducted at his instance by the mechanical expert Tasnimuddin Siddiqui on 19.10.2011. The RC, DL and insurance were verified by the concerned transport authority and the insurance company. On verification of the aforesaid documents, it was found that DL provided by the accused which is Ex.P1 was forged State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 11/38 and the report regarding the same of the MLO Transport Authority, Bulandshahar is Ex.PW3/C. He also verified the date of birth of the accused as mentioned in the DL Ex.P1 and it was found that as per school records of Delhi Public school, the age of accused namely Piyush Kumar Kanna was 20.11.1992 while date of birth mentioned in the DL is 05.07.1989. The age verification certificate issued by the Principal, Delhi Public School is Ex.A-8. The date of issue of DL was 20.04.2009 and the accused was minor as per the document Ex.A-8 on the date of issue of DL. He collected the opinion on MLC of the victim and the injuries were found grievous. Offence under section 468/471/338 IPC and 3/181 MV Act were added in the charge sheet. The offending vehicle was released to the owner on superdarinama. On completion of the investigation, he filed the charge-sheet before the court concerned. PW-6 had correctly identified the accused. The photographs of the offending vehicle were shown to the witness who correctly identified the same and submitted that it was the same vehicle which was seized by him. The four photographs of the offending vehicle are Ex.P1 (colly).
During cross-examination of the witness by Ld. Counsel for the accused, PW-6 stated he had retired for the last three years. On receipt of the call, he reached the spot in about 15-20 minutes. He did not find anybody at the spot. I had confirmation from the person who had called State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 12/38 me and confirmed about the accident, however, I did not cite him as witness as he refused to disclose his name and address. He had not mentioned the telephone number of the informer whom he had called. Voluntarily, he deposed that the number is a matter of record and is mentioned in the DD entry No. 36A. The incident had happened at around 11:45 pm and they received the call at around 11:58 pm. The shops were closed at the time of the incident. He again received DD No. 2A at about 12:30 AM regarding the fact that the injured / victim is admitted in LNJP hospital and thereafter he went to LNJP hospital at around 01:00 am. The complainant / victim was under
treatment when he reached the hospital. He did not meet the accused in the hospital, however, the victim informed him that he was brought to the hospital by the accused. He had collected the MLC of the victim from the hospital at that time. It is a matter of record whether the victim drinks or not. The victim arrived at the spot at about 03:00 am. He served the notice under Section 133 of MV Act to the father of the accused at about 02:30 am and thereafter, the father of the accused along with the accused and the offending vehicle came at the spot at about 03:30 am and the complainant / victim identified the accused at the spot itself. He did not remember whether any complaint was filed by the father of the accused against him at any time prior to the incident. He denied the suggestion that the accused was falsely implicated in this case by him because State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 13/38 of his past enmity with the father of the accused who had made a complaint against him in another case. He denied the suggestion that he had taken signatures of the accused and his father on blank papers and the seizure memo of the accused showing seizure of his driving license. He had no knowledge of the fact that the valid license of the accused was produced in the MACT Court proceedings where the claim of the victim was dismissed on the ground of possession of valid driving license of the accused and because the victim was drunk at the time of accident. He did not know if the victim in his deposition before the Court had refused to identify the car and the accused. He denied the suggestion that to attract the sec. 468/471 IPC, he falsely implanted the false driving license upon the accused to make the false case of forgery against the accused. He denied the suggestion that he had done the investigation improperly due to his previous enmity with the father of the accused.
10. Vide separate statements of the accused U/s 294 Cr.P.C dated 18.07.2019, he had admitted the factum of registration of FIR, endorsement, certificate u/s 65 B, DD No.36A dated 16.10.2011, DD No. 2A dated 17.10.2011, MLC No. 165691/11 of Naresh Tyagi, X-ray report of CR No. 165691/11 and my date of birth certificate issued by his school u/s 294 Cr.P.C without admitting the contents thereof. The same were Ex.A-1, Ex.A-2, Ex.A-3, Ex.A-4, Ex.A-5, Ex.A-6, EX.A-7 and Ex.A-8. Accordingly, his State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 14/38 statement was recorded as per Section 294 Cr.P.C, and the concerned witnesses were dropped by the prosecution.
11. The prosecution evidence was closed on 05.01.2023.
Statement of the accused u/s 313 read with section 281 Cr.P.C was recorded, wherein he pleaded his innocence and stated to have been falsely implicated. He stated that there was an old enmity against the IO of this case with my father due to which the IO alleged me in this matter. The accused has opted to lead defence evidence. Accused has examined himself in his defence.
12. DW-1 Sh. Piyush Kumar(accused himself after seeking permission u/s 315 Cr.P.C) has deposed that this is a wrong, fake case made against him by the IO Umed Singh. Prior to the alleged incident, his father had lodged various complaints against the IO on different occasions. Copy of the complaint dated 02/08/2011 is marked as Mark DW-1/A. Copy of complaint dated 19/04/2012 is marked as Mark DW-1/B. He deposed that on the day of the alleged incident, he was made to sign various blank documents under threat and coercion, later which were used against him in the charge-sheet by producing fake driving license already Ex.P-1, in the charge-sheet is not his driving license. On the day of the alleged incident, he was holding a valid learner's license which was given to the IO but was not produced intentionally in the charge- sheet. Copy of learner's driving license issued on 07/10/2011 is marked as Mark DW-1/C. Copy of the State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 15/38 driving license issued on 18/11/2011 is marked as Mark DW-1/D. He deposed that they filed application u/s 156(3) against the IO which was later clubbed in the same case. The same contentions were raised before the Hon'ble MACT Court by the claimant, wherein the Hon'ble Court conceded the valid DL of the accused and ruled accordingly. Certified copy of the order of the MACT Court vide petition No 560/2011 is Ex.DW-1/E. I say that the order of the MACT Court was challen the Insurance Company before the Hon'ble Delhi High Court wherein the contentions of the insurance company that the acad was not holding driving license again ruled out by the Delhi High Court also categorically stated that respondent no.2 (accused herein) was holding a valid learner's license on that day (alleged date of incident). Certified copy of the order of the Hon'ble Delhi High Court is Ex.DW-1/F. During cross-examination of the witness by Ld. APP, DW-1 admitted that on 16/10/2011 at about 11:15 pm, at town Hall Nai Sarak, opposite shop no.765, Chandni Chowk, the complainant / victim Naresh Tyagi got hit by the car bearing registration no. DL 2CW 4989. He denied the suggestion that he was driving the above said offending vehicle bearing No. DL 2CW 4989 at the time of accident on the above said date and time. Voluntarily, he deposed that his father Sh. Ranjiv Khanna was driving the offending vehicle at the time of accident. He denied the suggestion that he was alone at the time of accident and State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 16/38 that he was driving the offending vehicle. He denied the suggestion that he had given the fake DL which is Ex.P-1 to the IO. He denied the suggestion that his father was not driving the said vehicle on the alleged day of accident and that he was driving alone the above said vehicle. He admitted that he had not produced the original DL or learners license which are marked DW-1/C and DW-1/D. Voluntarily, he deposed that he had given a copy of learners license to the IO on the alleged date of incident. He denied the suggestion that he had not provided the learners license copy to the IO. He denied the suggestion that after the accident, he alone took the victim / injured Naresh Tyagi to the hospital in the offending vehicle. (Voluntarily, he deposed that he along with his father took the victim / injured Naresh Tyagi to the hospital in the offending vehicle. Again said, Ct. Chanderkant also accompanied them). He admitted that he had signed the documents Ex. PW-4/A, Ex. PW-4/B, Ex. PW-4/C, Ex. PW-4/D all bearing his signatures at point C. Voluntarily, he deposed that he had signed on the blank documents and the contents were not written at the time when he signed. He denied the suggestion that he was driving the offending car bearing registration no. DL 2CW 4989 at high speed and in a rash and negligent manner and while driving in the above said manner, he hit his car against the complainant due to which the complainant Naresh Tyagi sustained grievous injuries. He denied the suggestion that State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 17/38 he was not holding any license on the date of accident and that is why he handed over the forged driving license Ex. P-1 to the IO. (Voluntarily, he deposed that he had handed over the Learners license to the IO on the date of the alleged incident). The witness has gone through the chargesheet and submitted that the Learners License as alleged to be provided by him to the IO is not placed on record. Voluntarily, he deposed that IO had deliberately, to personal enmity, not placed on record the copy of Learner license provided by him on the alleged date of incident. He admitted that the documents mark DW-1/A, DW-1/B, DW- 1/C and DW/D. placed on record were not duly certified / authenticated by the concerned authority. He denied the suggestion that there was no previous enmity between him and the IO. He denied the suggestion that he was deposing falsely to save himself from conviction.
APPRECIATION OF EVIDENCE:
13. Final arguments were heard at length. I have heard the submissions made by the Learned APP for state and Learned Counsel for accused and carefully perused the evidence and the documents on record.
14. At the time of final arguments, it is argued by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of the relevant section are completed. Ld. APP heavily relied State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 18/38 upon the testimony of IO wherein he exhibited the notice u/s 133 MV Act and allegedly false DL given by the accused. He submitted that the accused has committed an offence of using forged document as genuine. On the other hand, Learned counsel for the accused argued that the accused has been falsely implicated in the present case due to previous enmity of IO with the father of accused. He submitted that the accused was not driving the offending vehicle in the question and the accused had handed over a copy of learner's license to the IO, however, the same was not annexed with the chargesheet. He submitted that the complainant's evidence is full of contradictions, neither has he identified the accused nor the offending vehicle, hence, it is not proved that the accused was driving the vehicle in rash and negligent manner. He also submitted that even the site plan has not been proved by the complainant. Ld. Counsel has also relied upon the order of Ld. MACT wherein the accused has produced valid driving license and the said order was upheld by superior court. It is further argued that even the notice u/s 133 MV Act has not been proved as the same was not exhibited by the owner of vehicle who was examined as PW-5 and statement of witness u/s 161 CrPC could not be relied upon.
15. I have cogitated over the submissions made by ld.
APP for the state and Ld. Counsel for the accused. At this State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 19/38 juncture, it is prudent to discuss the penal provisions involved in the case for arriving at just a decision.
16. Let us peruse the provision of Section 279 IPC, which is as under:-
Section 279. Rash driving or riding on a public way- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger, human life or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
17. Essentials Ingredients of Section 279 IPC are:
(1). Driving or riding in a public way.
(2). Such driving or riding must be rash or negligent to the point of endangering human life or causing harm or injury to others.
18. The Hon'ble Supreme court in the case titled as Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 observed that:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
19. The Hon'ble Supreme court further observed that Ravi Kapur (supra);
"The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 20/38 upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others."
20. Let us peruse the provision of Section 338 IPC, which is as under :-
Section 338. Causing grievous hurt by act endangering life or personal safety of others.-Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
21. Essentials Ingredients of Section 338 IPC are:
(1). Accused did an act rashly or negligently.
(2). Act endangered human life or the personal safety of others.
(3). Such acts cause grievous hurt.
22. 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:-
a). That the accused was the person driving the offending vehicle at the relevant point of time.
b). That the accused drove the same in a rash and negligent manner.
c). That grievous injuries to the victim (in case of Section State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 21/38 338 of IPC) was the direct and proximate cause of the injuries suffered by way of rash and negligent driving of the accused.
23. While the first ingredient needs to be established beyond reasonable doubt with the aid of eye-witnesses and circumstantial evidence, and the third ingredient needs to be proved by medical evidence; it is the second ingredient which requires interpretation and explanation. This second requirement for proving the guilt of the accused is that the death or grievous hurt had been caused as the accused was driving the vehicle in a rash and negligent manner. 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.
24. 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 Culpable negligence lies in the failure to exercise State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 22/38 reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case."
25. It has been held in Bhala Chand Waman Rao Pathe Vs. State of Maharashtra (SC 1964), that there is a difference between a rash act and a negligent act. Criminal negligence is the gross and culpable, neglect or failure to exercise reasonable and proper care and to guard against injury, either to the public generally, or to an individual in a particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The imputability arises from the 'neglect of the civic duty of circumspection'. On the other hand, culpable rashness is acting with the consciousness that the mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and if he had exercised caution, he would have had the consciousness that illegal consequences may follow, but continues with the act in a vain hope that they will not, and often, with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from 'acting despite the consciousness'. A question whether the accused's conduct State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 23/38 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 to be sufficient, considering all the circumstances of the case.
26. To fasten criminal liability upon the accused in the present matter for offence u/s 279/338 IPC, it is imperative that the injuries should have been a direct result of a rash or negligent act of the accused and that act must be proximate cause without intervention of another's negligence. The act must be causa causans and it is not enough that the act may have been causa sine qua non. In a nutshell, the prosecution has to prove that Piyush Kumar was driving a car on a public way in a rash or negligent manner and he hit one pedestrian Naresh Tyagi causing grievous injuries to him. My observations on the evidence adduced during trial are delineated hereinafter.
27. In a criminal trial, the onus remains on the prosecution to prove the guilt of the accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favor of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
"(i) The onus of proving all the ingredients of an offence is always State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 24/38 upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt."
28. For avoiding the repetition of evidence and overburdening of the court records, all points of determination are being analyzed and determined simultaneously. As per section 101 Indian Evidence Act, the onus of proving the points is on the prosecution. It is the cardinal principle of criminal jurisprudence i.e. presumption of innocence, the prosecution has to prove the guilt of the accused beyond reasonable doubt.
29. In every criminal trial, the identity of the malefactor must be established by proof beyond reasonable doubt. Indeed, the first duty of the Prosecution is not to prove the crime but to prove the identity of the offender, for even if the commission of the crime can be established, there can be no conviction without proof of identity of the offender beyond reasonable doubt. Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in fact, the same person who committed the offence. In the present FIR, accused Piyush Kumar was not arrested from the spot. As per the story of prosecution, the complainant is the only eye-witness of the offence of rash and negligent driving which caused him grievous injuries.
State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 25/38 A careful perusal of testimony of complainant who was examined as PW-1 reflected that initially the complainant has identified the accused Piyush Kumar in his examination-in-chief, however, during his cross- examination, he deposed that the driver of the car has taken him to the hospital. He further deposed that he was not sure that the accused Piyush Kumar had taken him to the hospital or not. He further deposed that he did not know who had taken him to the hospital. On this specific point, PW-1 was re-examined by the state, in which PW-1 deposed that he made his earlier statement in examination- in-chief under the presumption that the accused must have taken him to the hospital as he was facing trial. Hence, it can be concluded that the testimony of the complainant being the sole eye-witness of the alleged offence, is inconsistent, contradictory and rebutted during his cross- examination as far as the identity of the accused is concerned and in the opinion of the court, same cannot be relied upon by the court.
30. It would be apposite at this stage to draw reference to the proposition of law laid down by Hon'ble Supreme Court in Paramjeet Singh @ Pamma vs State Of Uttarakhand (CRIMINAL APPEAL NO. 1699 of 2007), wherein it was held that :
"11.A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 26/38 by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. "
31. Furthermore, Ld. APP has argued that the identity of the driver of the offending vehicle is proved by the notice U/s 133 MV Act which was served to the owner of the vehicle. The said notice has been exhibited as Ex. PW-6/A in the testimony of PW-6/IO and he identified his signature at point A. However, to the surprise of the court, the prosecution has also examined the owner of the offending vehicle namely Sh. Ranjiv Khanna as PW-5, but his examination is silent qua receiving any such notice or replying to any such notice. Neither the said notice has been put to the witness during his examination-in-chief by the prosecution. Further, the handwriting or signature of the owner of the vehicle in the said notice has not been verified or proved. Thus, the said notice cannot be relied upon to prove the identity of the accused. It was for the prosecution to prove that the accused Piyush Kumar was State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 27/38 the same person who was driving the vehicle in question and hit the complainant. Identification of the accused by the complainant cannot be relied upon in the light of his inconsistent, unreliable and contradictory examination before the court as discussed above. Notice under section 133 MV Act also cannot be relied upon to prove that the accused was the person who was driving the vehicle on the alleged date and at the relevant time. Furthermore, the identity of the offending car has also not been established by the prosecution as the complainant/PW-1 has failed to identity the vehicle during his examination before the court and the owner of the offence vehicle/PW-5 has also not deposed qua the fact that the said vehicle was driven on the alleged date of incident which resulted in the accident. Rest of the witnesses are formal in nature and the identity of the accused cannot be established from their testimonies, inasmuch as, the alleged accident was neither committed in their presence nor it is the case of the prosecution.
32. Thus, the identity of the accused Piyush Kumar and the identity of the offending vehicle could not be established beyond reasonable doubt. In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be doubted. The constitutional presumption of innocence State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 28/38 guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
33. In the present case, the entire prosecution case was grounded on the statement of the complainant whereby he narrated the incident of alleged rash and negligent driving by the accused to police authorities. The case of prosecution of commission of offence cannot be considered to be standing on its own legs without the testimony of the complainant asserting the facts mentioned in his statement before the police/IO. The testimony of an eyewitness was essential for prosecution to discharge its burden, however prosecution failed to do so, therefore, the accused can not be held liable for the alleged offence. Rest of the other witnesses are only formal police witnesses or medical witnesses which by any stretch of imagination cannot aid the prosecution in achieving conviction as they at best could have proved the police proceedings conducted during investigation but importantly they could not add anything to fortify the case of prosecution. The case of the prosecution in such circumstances stands not proved. Since, the identity of the accused and the identity of the vehicle in question has not been established by the prosecution, there is no point in discussing the further points of determinations as far as the offence of rash and negligent driving is concerned. Similar is the observation State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 29/38 of the court qua the offence of driving the car without the valid Driving license is concerned as the prosecution evidence falls short in proving that the accused was even driving the offending vehicle on the alleged date of incident at the time of alleged accident. In view of the above discussion, the prosecution has failed to prove the offense u/s 279/338 IPC and 3/181 MV Act against the accused beyond the pale of reasonable doubts.
34. In this case, the accused has also been charged for commission of offence u/s 468/471 IPC and as per the case of the prosecution, the accused has handed over forged Driving license Ex. P-1 to the IO during investigation for the purpose of cheating during investigation and he fraudulently and dishonestly used the same as a genuine document.
35. For the sake of ready reference, both the relevant sections are being reproduced below:-
Section 468 Forgery for purpose of cheating:- Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a terms which may extend to seven years, and shall also be liable to fine.
Section 471 Using as genuine a forged[ document or electronic record]:- whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
36. To understand the scope and import of section 468 and 471 IPC, it is necessary to peruse the elements of State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 30/38 section 470 IPC which defines forged document as a false document made by forgery.
37. Furthermore, the term "forgery" is defined in Section 463 as whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
38. The condition precedent for the offence u/s 468/471 IPC is forgery and the condition precedent for forgery is making of a false document. The making of a false document is explained in Section 464 of IPC.
39. An analysis of section 464 of the Penal Code shows that it divides making of false documents into three categories.
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation of otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 31/38 other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
40. In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorized by someone else; (ii) where a person dishonestly or fraudulently, alters a document in any material part, without lawful authority;
(iii) he altered or tampered a document or he obtained a document by practicing deception, or from a person not in control of his senses.
41. It was held by the Hon'ble Supreme Court in Mohd.
Ibrahim Vs. State of Bihar and others (2009) 8 Supreme Court cases 751 as under:
"That when a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, execution of such document (purporting to convey some property of which is not the owner) is not execution of a false document as defined under 464 of the Code. If what is executed is not a false document, there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
42. Furthermore, as required under most of the offences State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 32/38 punishable under Indian Penal Code, there are two essential ingredients to commit the offence punishable under Section 471 IPC. The first ingredient is the actus part which means that a person must have used a forged document as genuine and he must have done so fraudulently or dishonestly. The second ingredient, which constitutes mens-rea, is that the person using the forged document as genuine should either know or have reasons to believe that the document is forged. It is only when these two ingredients have been proved that it can be concluded that an offence under Section 471 IPC has been committed.
43. Now keeping the statutory requirements in mind, I shall assess if these requirements/ingredients have been proved by the prosecution in the facts of the present case for proving charges under section 468/471 IPC.
44. The case of the prosecution regarding alleged forgery committed by the accused and thereafter, use of the forged document i.e. driving license by the accused. As per the case of prosecution, the accused himself had handed over the forged Driving license to the IO/SI Umed Singh which was seized by IO vide seizure memo Ex. PW-4/D.
45. On perusal of previous order-sheets of the present case, it is found that the ld. Predecessors had sought explanation from the concerned IO with forged Driving License, and it has been recorded that IO submitted that the forged DL was given by the father of the accused in State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 33/38 writing in his reply to the notice U/s 133 MV Act. PW- 6/Retd. IO SI Umed examined and he deposed that after recording the statements of the complainant which is Ex. PW1/A and after registration of FIR, the complainant came at the spot and a site plan was prepared. It is further deposed that he served notice to the owner of the offending vehicle, on which both the owner and the accused along with the vehicle came to the police post Town Hall. It is further deposed that the complainant was present there and he had also identified the accused and the accused was arrested vide arrest memo Ex. PW1/B. As per deposition of PW-6, thereafter, seizure memo of offending vehicle Ex. PW4/A, seizure memo of insurance Ex. PW4/B and seizure memo of Driving license Ex. PW4/D was prepared. As per PW-6, the complainant and the owner of the vehicle were all present at Police post at that time, however, neither the complainant/PW-1 nor the owner of vehicle/PW-5 has deposed regarding the handing over of such documents by the accused or preparation of any such seizure memos. The said seizure memos didn't even bear the signatures of the complainant or owner of the vehicle. At this stage, a reasonable question arises here that when the complainant was present at the time of seizure, then why his name has not appeared in the seizure memo, the said question remained unanswered. Further, contrary to the deposition of PW-6/IO, PW-1 deposed that after his medical treatment at the hospital, he went to his house and State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 34/38 the police had visited his house once or twice but nobody contacted him thereafter. The testimony of the complainant puts into question the handing over the driving license by the accused and seizure proceeding of driving license by the IO. The accused has examined himself as DW-1 and he deposed that his signatures were taken on the blank papers. He further deposed that he was having learners driving license at the time of alleged incident, he had handed over the same to the IO, however, he had not placed the same on record. He further exhibited the certified copy of order of Ld. MACT Court Ex. DW-1/E wherein the valid DL of the accused conceded, the said order was further upheld by the Hon'ble High Court of Delhi vide order which is Ex. DW-1/F. In view of the above discussion, the genuineness and authenticity of seizure memo Ex. PW4/D comes under the clouds of doubt and possibility of planting of documents could not be ruled out.
46. Further, there is no material on record that the false document which is Ex. P-1 has been prepared by the accused nor any forensic evidence with respect to forging of any part of the document by the accused. There does not appear even an iota of effort during investigation on the part of the IO to obtain contemporaneous admitted signatures of the accused for forensic comparison of any part of false document/ Ex.P-1 which lend slightest possibility to prove the forgery by the accused.
47. To support its case, prosecution has examined PW-3 State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 35/38 Sh. Tushar who had brought the DL register of the year 2009 and he deposed that as per the records, DL Ex. P-1 was not issued by ARTO Office, Bulandshahar, U.P. in the name of Piyush Kumar. The testimony of PW-3 could not prove that the said Ex. P-1 was a forged/false document and the same was prepared by the accused. Therefore, the evidentiary value of his testimony is not sufficient enough to bring home the guilt of the accused.
48. In totality, the DL Ex. PW-1 is alleged to be a false document as defined u/s 464 IPC and it is alleged that the accused has made and forged the said document. However, the prosecution has failed to prove that the said DL Ex. P-1 bears the handwriting of the accused and the same has been forged by writing the incorrect date of birth of the accused or that the said DL was prepared by the accused.
49. The prosecution is required to prove the guilt of the accused beyond reasonable doubts, however, the DL was not sent to FSL for determining its genuineness. The factum of forgery cannot be said to have been proved on the basis of an testimony of PW-3 and PW-6. The prosecution has failed to prove that the accused made the false document as contemplated u/s 464 IPC which is the condition precedent for convicting the accused for the offence of forgery u/s 468 IPC.
50. Prosecution has also alleged that the accused used the forged DL Ex. P-1 as genuine by handing over the same to the IO during investigation for the purpose of State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 36/38 cheating and has thereby committed offence u/s 471 IPC. However, as discussed above, the prosecution has failed to prove that DL Ex. P-1 as a forged document. As the Ex. P- 1 has not been proved to be a forged document, the accused cannot be convicted for the offence u/s 471 IPC. Therefore, this court do not find accused Piyush Kumar guilty of offences U/s 468 and 471 IPC.
CONCLUSION:
51. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer Guntur reported as VIII(2007) SLT 454(SC).
Unless and until, the prosecution discharges this primary burden of proof, the burden never shifts upon the accused.
52. In the case at hand, identity of the offending vehicle and identity of accused as driver of offending vehicle is not proved, there is no evidence on record to prove that the State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 37/38 accused was driving in a rash and negligent manner nor that the false DL is a false documents which was was handed over by the accused to the IO, or that the false DL forged by the accused.
53. On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution for offence u/s 279/338/468/471 IPC and u/s 3/181 MV Act. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Accordingly, the accused Piyush Kumar Khanna is hereby acquitted for an offence punishable under Section 279/338/468/471 of Indian Penal Code and Section 3/181 of Motors Vehicles Act.
54. File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court Digitally signed
by MEENA
MEENA CHAUHAN
today 21.12.2023 CHAUHAN Date:
2023.12.21
16:31:50 +0530
(MEENA CHAUHAN)
Metropolitan Magistrate-08
Central District, Tis Hazari Courts/Delhi [This judgment contains 38 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Piyush Kumar FIR No. 224/2011 PS Kotwali 38/38