Delhi District Court
State vs . Deepak Mahor. on 2 April, 2022
IN THE COURT OF DEEPAK KUMAR-II, MM-02, SOUTH EAST,
SAKET COURTS, NEW DELHI.
FIR No. 366/15.
PS: OIA.
U/S 279/338 IPC
State Vs. Deepak Mahor.
Case No. 91503/16.
JUDGMENT
A. SL. NO. OF THE CASE : 91503/2016.
B. DATE OF INSTITUTION : 16.11.2015.
C. DATE OF OFFENCE : 09.05.2015.
D. NAME OF THE Raju Prasad Gupta S/o Sh.
COMPLAINANT Vishwanath Gupta R/o RZ-
60A/9 Tughlakabad
Extension, New Delhi.
E. NAME OF THE ACCUSED : Deepak Mahor S/o Sh.
Suresh Mahor R/o House No.
C-22, Shyam Nagar near
Chandiwala Hospital, OIA
Phase-III, New Delhi.
F. OFFENCE
COMPLAINED OF : 279/338 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Conviction.
I. DATE OF SUCH ORDER : 02.04.2022.
Brief Statement of Reasons for Decision
1. Briefly stated, case of the prosecution is that on 09.05.2015 at about 10:00 am at T-8, OIA Phase-II, New Delhi within the jurisdiction of PS-OIA, New Delhi, accused herein was allegedly driving his FIR No. 366/15.
PS: OIA.
DEEPAK Digitally signed by
U/S. 279/338 IPC.
State Vs. Deepak Mahor.
DEEPAK KUMAR 1
No. 91503/16.
KUMAR Date: 2022.04.02 23:18:07
+05'30'
offending vehicle i.e., motorcycle bearing registration number DL-3SBB- 0145 in rash and negligent manner as well as at high speed so as to endanger the human life and personal safety of others. It has further been alleged that while driving the offending vehicle in aforesaid manner, he hit the same against one pedestrian namely Sh. Raju Prasad Gupta and caused grievous injuries to him. On the basis of DD No. 8A HC Suresh Tyagi alongwith Ct. Premvir went to AIIMS Trauma Center where he came to know that vide MLC No. 489818/15 victim/ injured Raju Prasad Gupta was undergoing treatment with the alleged history of road traffic accident. Vide DD No.4A dated 10.05.2015 statement of injured was recorded at ESI Hospital, on the basis of which instant case FIR was registered for the offences under section 279/337 IPC vide DD No. 9A at PS-OIA. During the course of investigation, statement of witnesses were recorded, site plan was prepared, offending vehicle was seized and its mechanical inspection was conducted and other steps were taken towards the culmination of investigation. On conclusion of the investigation, challan under section 279/338 IPC was filed against the accused driver and a kalandra in respect of offences punishable under section 146/196 and 50/177 of the MV Act was filed against the accused owner.
2. Accused driver and accused owner were summoned by the court for facing trial for the aforesaid offences. In compliance of section 207 CrPC, copy of chargesheet and the documents annexed with it were supplied to accused. Vide order dated 18.11.2015 accused owner was convicted for the offences punishable under section 146/196 and 50/177 of the MV Act and was sentenced to deposit the fine of Rs. 1,000/-. Consequently, kalandra was disposed off. Prima facie offences punishable under section 279/338 IPC were made out against the accused driver namely Deepak Mahor. Accordingly, on 16.02.2016 Ld. Predecessor of this court framed charge against the accused for the abovementioned offences, to which he pleaded not guilty and claimed FIR No. 366/15.
PS: OIA.
DEEPAK Digitally signed by U/S. 279/338 IPC. State Vs. Deepak Mahor. 2 No. 91503/16. DEEPAK KUMAR KUMAR Date: 2022.04.02 23:18:26 +05'30'
trial. Thereafter, the case proceeded for recording of prosecution evidence.
3. In support of its case, prosecution examined as many as ten prosecution witnesses.
4. Deposition of PW1 Raju Prasad Gupta has been reproduced as follows: - "On 09.05.2015 at around 10:00 am, I alongwith my colleague Raju Mehta was going to our work place i.e T-15, Okhla Phase-II, New Delhi, on foot and about to reach there. We were on the left side of the road and about to cross the road, in the meanwhile, a bike rider came in a very rash and negligent manner and hit me, due to which I fell down on the road and receipt injuries on my right leg. The bike rider stopped and came to me but after seeing the crowd gathered there, he ran away from there after leaving his bike on the spot. My colleague took me to AIIMS Trauma Center but there was no bed available in the emergency ward that is why he took me to ESI hospital for treatment. On the next day, my son made call on 100 number and police came to ESI hospital. My statement was recorded my statement in the hospital which is Ex.PW1/A bearing my signatures at point A. I was on bed rest for about five months. Accused Deepak Mohar is present in the court today. (Correctly identified by the witness)".
5. His cross examination has been reproduced as follows: - "There were zebra crossing on the road from where I was about to cross. There were many persons crossing the road above me (in front of me). It is wrong to suggest that there were no zebra crossing at the spot of incident. It is wrong to suggest that the accused did not run away from the spot just after the accident. It is further wrong to suggest that he took me to AIIMS Trauma Center for treatment. It is wrong to suggest that my colleague namely Raju Mehta was not with me at the time of accident. It is correct that just after the accident I did not make call on 100 number. Vol. I did not have mobile phone at that time. It is wrong to suggest that the accused visited ESI hospital also. It is wrong to suggest that I am deposing falsely and the accused has been falsely implicated in the present case".
6. Deposition of PW2 Ct. Nahanji has been reproduced as follows: -
"On 10.05.2015, on receipt of DD no. 4A, I alongwith HC Suresh Kumar went to ESI hospital. There we met the complainant Sh. Raju Prasad Gupta. HC Suresh Kumar took the statement of the complainant and he endorsed the same. He handed over the said tehrir to me for getting the FIR registered. I went to PS-OIA and got the FIR registered. Thereafter, I alongwith HC Suresh Kumar went to the place of incident. FIR No. 366/15.
PS: OIA.
U/S. 279/338 IPC.
State Vs. Deepak Mahor.
No. 91503/16.
DEEPAK Digitally signed by
DEEPAK KUMAR
3
KUMAR Date: 2022.04.02
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HC Suresh Kumar prepared the site plan at the spot of accident. IO/HC Suresh Kumar seized a motorcycle bearing registration no. ....0145 and the same was deposited in malkhana. My statement was recorded by the IO. At this stage, Ld. APP for the State seeks permission to ask leading questions to the witness as he is not disclosing the complete facts. The request is allowed. I can not say with certainty that the registration number of the said motorcycle was DL-8SBB-0145. I can not say whether the complainant accompanied us at the spot of accident and I can not also say that at whose instance, the said site plan was prepared". This witness was not cross examined despite opportunity being afforded to the accused.
7. Deposition of PW3 Raju Mehta has been reproduced as follows: -
"I am residing at the abovesaid address with my family and work in T-15 Okhla, Phase-II, New Delhi. On 09.05.2015, at about 10:00 am, I alongwith Raju Gupta was coming from Crown Plaza and going towards our company on foot and when we both are crossing the road and came in the middle of the road we have seen (at this stage, witness is pointing towards the accused, who is present in the court and correctly identifies by the witness), we have seen the accused coming on his motorcycle in a very fastly (rashly) and in negligent manner. We both have given our hand to stop the bike as we are crossing the road but the accused is running in a very negligent way and he hit the complainant Raju Gupta in his right leg and because of that he fell on the road. Thereafter, because of this accident lots of public persons gathered at the spot and I took the victim Raju Prasad to the AIIMS Trauma Center for his medical in auto. Thereafter, I informed his family members. Police officials took me to the spot and prepared the site plan at my instance which is Ex.PW3/A, bearing my signatures at point 'A'. Police officials seized the offending vehicle/motorcycle, Black Colour bearing registration no. DL-3SBB-0145, produced by me vide seizure memo Ex.PW3/B, bearing my signatures at point 'A' and police has recorded my statement".
8. His cross examination has been reproduced as follows: - "Police had recorded my statement at PS. Police had came to inform me in my factory and due to this information I went to PS at about 02:00 pm for recording my statement. I worked as a tailor and the victim/complainant worked as washer-man. We both reside at different places. It is wrong to suggest that on that day, we were coming together. It is correct that the place of accident is nearby our factory. Vol. The accident had occurred on T-8, Okhla. It is wrong to suggest that I was not present at the spot with the victim. It is correct that the accused was came alongwith us to the AIIMS Trauma Center. It is correct that there was no red light near the place of accident. The complainant is presently not working with me. It is correct that I had shown the vehicle to the police but I did not know when they had taken the vehicle from the factory. I do not know who had taken the vehicle from the place of accident. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I was not FIR No. 366/15.
PS: OIA.
State Vs. Deepak Mahor. 4No. 91503/16.
DEEPAK Digitally signed by
DEEPAK KUMAR
KUMAR Date: 2022.04.02
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present at the spot of accident".
9. Deposition of PW4 SI Ekta has been reproduced as follows: - "On 10.05.2015, I was working as DO in PS-OIA, and my duty hours were from 08:00 am to 04:00 pm. On that day at about 02:20 pm, Ct. Nahan brought a rukka/tehrir which was sent by HC Suresh Tyagi. I put my endorsement on the rukka vide Ex.PW4/A and thereafter, I registered the present FIR and its copy is Ex.PW4/B, both bearing my signatures at point 'A'. Today, I have brought the original FIR register containing the abovesaid FIR in original. (OSR)". This witness was not cross examined despite opportunity being afforded to the accused.
10. Deposition of PW5 Ct. Deepak has been reproduced as follows: -
"On 23.05.2015, I was posted as constable at PS-OIA. On that day, accused Deepak Mohar, who is present in the court today, (correctly identified by the witness) came to PS-OIA alongwith his wife namely Lata. IO had arrested the accused and his personal search was conducted vide Ex.PW5/A and Ex.PW5/B, both bearing my signatures at point 'A'. Accused has produced his DL and RC of the offending vehicle bearing no. DL-8SBB-0145. IO had seized the same vide seizure memo Ex.PW5/C, bearing my signature at point A". This witness was not cross examined despite opportunity being afforded to the accused.
11. Deposition of PW6 MVI T.U Siddiqui has been reproduced as follows: - "On 22.05.2015, on the request of HC Padam Singh, PS OIA I insepcted a motorcycle make Honda Twister bearing no. DL-8SBB-0145 and submitted my detailed report with the fresh damages as mentioned/ exhibited under my signatures and seal. My mechanical inspection report in respect of the said motorcycle is Ex.PW6/A bearing my signature at point A". This witness was not cross examined despite opportunity being afforded to the accused.
12. Deposition of PW7 HC Premvir has been reproduced as follows: -
"On 09.05.2015, I was posted as constable at PS-OIA and was on emergency duty alongwith HC Suresh Tyagi. On that day, HC Suresh Tyagi received DD no.8A regarding MLC from AIIMS Trauma Center. I alongwith HC Suresh Tyagi went to AIIMS Trauma Center where HC Suresh Tyagi collected MLC of injured Raju Prasad Gupta. Injured Raju Prasad Gupta was not available in the hospital. Thereafter, we came back at PS-OIA and DD no.8A was kept pending". This witness was not cross examined despite opportunity being afforded to the accused.
13. Deposition of PW8 ASI Suresh Tyagi has been reproduced as FIR No. 366/15.
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No. 91503/16. DEEPAK Digitally signed by
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follows: - "On 09.05.2015, I was posted at PS Okhla at Head Constable. On th day on receiving DD no. 8A I along with Constable Prem Singh at AllMs Traum Center where I collected MLC of Raju Prasad Gupta and on his MLC Doctor H mentioned that patient is not present and nature of injury is pending investigati However, the said injured is not present in the said hospital and I tried to conta him but could not succeed. Thereafter I came back to the PS and the said DD en was kept pending. On 10.05.2015 I received DD no. 4A upon which I along w constable Nahnji went to ESIC hospital, where we met injured Raju Gupta who w under medical examination. Complainant Raju Prasad Gupta narrated incident a I recorded his statement. I prepared rukka which is Ex.PW8/A bearing signatures at point A. Rukka was given to constable Nahnji who took the ruka PS for registration of FIR. Thereafter I went to the spot. After registration of the F constable Nahnji and second 10 HC Padam Singh also reached their and furth investigation was marked to second IO". His cross examination has been reproduced as follows: - "It is wrong to suggest that I had not carried out the investigation or the writing was done/completed while sitting in PS. It is wrong to suggest that I am deposing falsely".
14. Deposition of PW9 Dr. Ashwin Deshmukh has been reproduced as follows: - "Today, I have seen X-ray report of injured Raju dated 09.05.2015. The said X-ray report was prepared by Dr. Mohd. Seraj, the then Sr. Resident of Department of Radiology, AIIMS. The said X-ray report Ex. PW9/A, bearing his signatures at point 'A'. Dr. Mohd. Seraj had left the hospital and his whereabouts is not known to hospital. My deposition is based on the official record and today I have been authorised vide authority letter Ex. PW9/B. Today I have been authorised by faculty incharge, MRS to depose on X-Ray report no. 8741". His cross examination has been reproduced as follows: - "I have no personal knowledge regarding this case. My deposition based on the records. Victim Raju was never treaded under me".
15. Deposition of PW10 HC Padam Singh has been reproduced as follows: - "On 10.05.2015, I was posted at PS - OIA as HC. On that day, this case was marked to me for further investigation. Thereafter, the eye witness namely Raju Mehta handed over me the offending vehicle bearing No. DL3SBB 0145, Honda CB Twister, black colour motorcycle. I seized the vehicle vide seizure memo already Ex PW3/B bearing my signature at point B. Thereafter, I prepared the site plan on the instance of eye witness, same is already Ex PW3/A bearing my signature at point B. Thereafter, I recorded the statement of the eye witness Raju Mehta and Ct. Nahanji Meena, who was with me. Thereafter, we came back to PS along with case property and same was deposited into Malkhana. I sent notice to the owner of the offending vehicle u/s 133 MV Act and on 23.05.2015, owner of the offending vehicle namely FIR No. 366/15.
PS: OIA.
State Vs. Deepak Mahor. 6No. 91503/16.
DEEPAK Digitally signed by
DEEPAK KUMAR
KUMAR Date: 2022.04.02
23:19:29 +05'30'
Smt. Lata along with the driver namely Deepak Mahor of the offending vehicle came at the PS. They handed over DL of driver and RC of offending vehcile to me. I seized the same vide seizure memo already Ex PW5/C and Ex PW5/D bearing my signature at point B respectively. On the same day, I gave notice to the owner of the offending vehicle u/s 91 CrPC for insurance and arrested the accused Deepak Mahor vide memo already Ex PW5/A bearing my signature at point B. I also conducted the personal search of the accused vide memo already Ex PW5/B bearing my signature at point B. The accused was released on police bail. On 25.05.2015, I along with accused came to the court for the purpose of TIP, however, accused refused for the same. Thereafter, I obtained the result on the MLC, which was found grievous in nature. After completion of investigation, I prepared the chargesheet and file before the Hon'ble court. Accused present in the court today (correctly identified by the witness). I can identify the case property if shown to me. The four photographs of the offending vehicle shown to the witness and witness correctly identified the same. These photographs are Ex P1 (colly)". This witness was not cross examined despite opportunity being afforded to the accused.
16. Accused in his statements dated 22.01.2019 and 09.03.2021 recorded under section 294 Cr.P.C admitted the genuineness of the DD No. 8A dated 09.05.2015, TIP proceedings and MLC of injured Raju Prasad Gupta as Ex. A1, Ex. A2 and Ex. A3 respectively.
17. After examination of all the PWs, PE was closed. Thereafter, on 09.03.2020, statement of the accused under section 313 CrPC read with 281 CrPC was recorded and all the incriminating evidence against accused were put to him for his explanation. In the said statement he stated that alleged incident occurred due to negligence of injured Raju Prasad. He further stated that he does not know as to why prosecution witnesses deposed against him and that majority of PWs have falsely deposed against him. He further stated that some of the PWs have deposed that he had fled away from the spot whereas he was the one who took the victim to the hospital. He further stated that he wants to lead defence evidence. However, no defence witness was examined and final arguments were addressed by the Ld. APP of the State and Ld. Counsel for the accused on 25.03.2021 and 30.03.2021 respectively. FIR No. 366/15.
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No. 91503/16. DEEPAK Digitally signed by
DEEPAK KUMAR
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18. I have considered the arguments addressed by Ld. APP for the state and Ld. counsel for the accused and have also carefully perused the case file.
19. Cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
20. In the present case, prosecution is required to prove the following ingredients to establish the guilt of the accused for the offences punishable under section 279/338 IPC that: -
(i) accused was driving his vehicle on a public way
(ii) grievous hurt to any person must have been accused;
(iii) and it must have been caused by rash or negligent act/driving of the accused.
21. To impose criminal liability under these sections, it is necessary that the grievous hurt should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. Culpable rashness is acting with consciousness that the mischievous and the illegal consequence may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent its happening. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution required of him, and that if he had he would have had the consciousness. Rash or negligent act is an act done not intentionally or designedly. A rash act is primarily an over-hasty act, and is thus opposed to a deliberate FIR No. 366/15.
PS: OIA.
DEEPAK Digitally signed by
State Vs. Deepak Mahor. 8
No. 91503/16.
DEEPAK KUMAR
KUMAR Date: 2022.04.02
23:20:02 +05'30'
act, but it also includes an act which, though it may be said to be deliberate yet done without due deliberation and caution. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Negligence is the genus of which rashness is a species. In order that rashness or negligence may be criminal it must be of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be caused thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences.
22. In the case in hand, accused has been identified by the PW1/ injured Raju Prasad Gupta and PW3 Raju Mehta respectively. It is pertinent to mention here that PW1 and PW3 were present at the spot when PW1/injured had met with the accident. In view of the testimony of the aforesaid PWs regarding the identity of the accused which has been duly corroborated, hence, there is no doubt regarding identity of the accused. In the similar manner identity of the offending vehicle bearing registration No. DL-3SBB-0145 has also been established beyond any reasonable doubt and the accused has also not disputed the identity of offending vehicle. Besides that, the accused had admitted the MLC of the injured. The PW1/injured and PW3 have consistently deposed that when they were crossing the road, accused had hit his motorcycle on to the PW1/ injured. The testimony of PW1/injured and PW3 have remained unblemished as nothing has come on record in their respective testimonies that the offending vehicle was not being driven in a rash and negligent manner by the accused. Therefore, in view of the same, it is convincingly established from the testimony of PWs and the medical documents that the injuries sustained by injured was caused to him due to the accident in question. In view of the above discussion, not only the FIR No. 366/15.
PS: OIA.
DEEPAK Digitally signed by U/S. 279/338 IPC. State Vs. Deepak Mahor. 9 No. 91503/16. DEEPAK KUMAR KUMAR Date: 2022.04.02 23:20:19 +05'30'
identity of the accused and identity of the offending vehicle but also the fact that the injured sustained grievous injuries in the accident as alleged by the prosecution, have been duly established beyond any shadow of doubt. Further, the accident took place at T-8, OIA Phase-II, New Delhi and the same is admittedly a public way.
23. Thus, the only point of contention in the instant case is whether the accused was driving his vehicle in a rash or negligent manner or not. In that regard testimonies of PW1 and PW3 is of utmost importance as they both have consistently deposed that they were crossing the road when PW1/injured was hit by the accused while riding his motorcycle. It is clear that the accused had failed to apply brakes when his motorcycle hit the PW1/injured when he was crossing the road along with PW3. Pertinently, in the mechanical inspection report which is Ex.PW6/A, nothing is mentioned which would suggest that brakes of the offending vehicle had malfunctioned. It is further pertinent to mention here that while riding, the rider of offending motorcycle was supposed to remain alert and was to maintain the safe distance with the other vehicles and pedestrians. However, the manner in which the same was being driven it shows that the accused was driving it in rash and negligent manner.
24. Accused has taken the defence during his statement recorded under section 313 CrPC that the accident took place due to the negligence of the PW1/injured. However, nothing has come on record to suggest as to how the accused was responsible for the accident. The defence taken by accused is nothing but sham and moonshine. A reasonable man ought to have been more circumspect and cautious in driving his vehicle on the road. However, in the present case, the accused culpably omitted to take the requisite precaution and drove his vehicle in haphazard and in rash and negligent manner. There is no reason to disbelieve the testimony of PW1 and PW3 regarding the rash and negligent act of the accused. The FIR No. 366/15.
PS: OIA.
DEEPAK Digitally signed by U/S. 279/338 IPC. State Vs. Deepak Mahor. 10 No. 91503/16. DEEPAK KUMAR KUMAR Date: 2022.04.02 23:20:38 +05'30'
injuries sustained by PW1 in the accident clearly manifests that the accused failed to take due deliberation and caution. The manner in which the accident took place and the harrowing consequences that followed it, can lead to only one inescapable inference that the accused was culpably rash and negligent. Moreover, the legal maxim "res ipsa loquitor" i.e., the things speak for themselves further fortifies the allegations of the prosecution regarding the rash and negligent act of the accused. The accident could not have resulted in the injuries sustained by the victim, had the accused would have taken sufficient precautions that were expected and required from him as a reasonable and prudent man confronted with the same situation. Hence, his act of driving is duly established to be criminally rash and negligent.
25. In view of the above discussion, the prosecution has proved all the essential ingredients of offences punishable under sections 279/338 IPC and beyond any reasonable doubt by leading convincing and clinching evidence against the accused. Hence, the accused Deepak Mahor is hereby convicted for the offences punishable under section 279/338 IPC.
Let he be heard on the quantum of sentence.
Digitally signed by DEEPAK DEEPAK KUMAR KUMAR
Date: 2022.04.02 23:21:03 +05'30'
Announced in open court DEEPAK KUMAR- II
today i.e., on 02-04-2022 MM-02/SED/SAKET/ND
FIR No. 366/15.
PS: OIA.
U/S. 279/338 IPC.
State Vs. Deepak Mahor. 11
No. 91503/16.