Delhi District Court
State vs Jagdish on 24 July, 2012
State v. Jagdish
IN THE COURT OF SH. SANJAY SHARMA, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH
EAST, SAKET COURT, NEW DELHI.
Case No. 259/2/03 (Old No.263/2/02)
Unique Case I.D. No.02403R0381872003
STATE VERSUS JAGDISH
FIR No.52/2001
U/s 279/338 IPC
P. S. New Friends Colony
Date of filing of the charge sheet: 05.05.2002
Date of reserving order : 24.07.2012
Date of pronouncement : 24.07.2012
JUDGEMENT
(a Serial Number of the case : 259/2/03 ) (b The date of the commission : 28.01.2001 ) of the offence (c The name of the : Sh. Surender Malhotra ) complainant S/o Sh. Pokhar Dass R/o 5-B, 31 NIIT Faridabad, Haryana.
(d The name of the accused : Sh. Jagdish S/o Sh. ) person, his parentage and Hemraj R/o Village & PO residential address Dukya PS Khatu Shyamji District Sikar, Rajasthan Present Address:
G-342, Saroop Nagar, Samaipur Badli, Delhi-42 (e The offence complained of : Section 279/338 IPC )
(f) The plea of the accused : Pleaded not guilty (g The final order : Acquittal ) (h The date of the order : 24.07.2012 Case No. 259/2/03 Page No. 1 of 11 State v. Jagdish ) PROSECUTION CASE:
1. The case of the prosecution, in brief, is that on 28.01.2001 at 02.20 PM, the complainant (PW-4) with his wife Smt. Manju Malhotra (PW-5) and 5 yr. old daughter Ms. Sakshi were going towards Faridabad via Mathura Road on his Scooter No. DL-5SA-0488. The Truck No. HR-38C-9791 was running ahead the said Scooter. When the said Truck reached near Modi Mill Flyover, the accused suddenly swerved the said Truck to left side of the said road and as a result, rear side of the said Truck hit the said Scooter.
Resultantly, the said Scooter along with riders had fallen on the road. The accused stopped the said Truck and offered the complainant to take him to Hospital. The complainant asked one passer-bye to note down the number of the said offending vehicle and name and address of the accused. The said person had given the registration number of the offending vehicle, and names and address to the complainant. According to the prosecution, the said accident had taken place due to rash and negligent driving of the accused. After the accident, PCR Van reached at the site and informed PP Sukhdev Vihar regarding the accident and removed the complainant (PW-4), his wife (PW-5) and daughter to Holy Family Hospital. On receipt of information, PP Sukhdev Vihar recorded DD No.7 and marked to HC Rohtash Kumar (PW-7) for further action. On receipt thereof, HC Rohtash Kumar (PW7) along with Ct. Govind Narain (PW-3) reached at the site where he found the said Scooter and offending vehicle in accidental condition and further, that injured persons had been removed to Holy Family Case No. 259/2/03 Page No. 2 of 11 State v. Jagdish Hospital. He left Ct. Govind Narain (PW3) at the spot and reached at Holy Family Hospital.
2. Further, HC Rohtash Kumar (PW-7) made written requests vide Ex.PW-7/A and Ex.PW-7/B for recording statement of the complainant and his wife. However, the complainant and his wife were declared unfit for making statement. He could not find any eye-witness in the Hospital. Thereafter, he returned to the spot and he could not find any eye-witness to the said accident. On the basis of site inspection, MLC of the injured persons and bodily injuries suffered by them, HC Rohtash Kumar (PW-7) was of the opinion that offences U/s 279/337 IPC were committed and therefore, he sent a ruqqa Ex.PW-7/C to the police station New Friends Colony through Ct. Govind Narain (PW-3) for registration of FIR U/s 279/337 IPC. As a result, the case FIR was registered U/s 279/337 IPC at police station New Friends Colony at 04.30 PM on 28.01.2001 and investigation thereof was marked to HC Rohtash Kumar (PW-7). During investigation, he prepared site plan Ex.PW-7/D, seized the offending vehicle and the said Scooter vide Seizure Memo Ex.PW-3/A and Ex.PW-3/B respectively. He deposited the seized vehicles in the Malkhana and got their mechanical inspection vide Ex.PW-1/A and B. He served a Notice U/s 133 MV Act Ex.PW-7/E upon the owner of the offending truck namely Sh. Gian Singh who revealed that the accused was driving the offending truck at the time accident and produced the accused. He arrested accused vide Arrest Memo Ex.PW3/D and Personal Search Memo Ex.PW-3/E, seized deposit receipt of D/L and R/C of the said Truck vide Seizure Memo Ex.PW-7/F-G, recorded statement of the complainant, his Case No. 259/2/03 Page No. 3 of 11 State v. Jagdish wife and other witnesses. On completion of investigation, charge sheet U/s 279/338 IPC was laid against the accused.
3. The Court had taken cognizance of offence U/s 279 and 338 IPC and issued process against the accused. The accused was supplied copy of charge sheet and accompanying documents as provided U/s 207 Cr.P.C.
4. During the trial, the prosecution examined seven witnesses, namely PW-1 Sh. Shadilal, PW-2 Dr. Vaneeta Kapoor, PW3 Ct. Govind Narain, PW4 Sh. Surender Malhotra, PW-5 Smt. Manjur Malhotra, PW-6 DO SI (retd.) Jai Karan and PW-7 IO ASI Rohtash Kumar.
5. As recorded in the order dated 21.04.2011, the accused has not disputed MLC's of the complainant (PW-4), his wife namely Smt. Manju Malhotra (PW-5) and daughter namely Ms. Sakshi Malhotra.
6. In his examination recorded U/s 281 of the Cr.P.C., the accused pleaded alleged false implication and pleaded innocence. According to the accused, he was not driving the offending vehicle. He stated that the owner of the offending vehicle in collusion with Investigation Officer has implicated him in the present case
7. I have heard Ld. APP for the State and Sh. Anil Gujral, Adv. for accused and considered evidence on record.
8. PW-1 Sh. Shadi Lal conducted Mechanical Inspection of Scooter No. DL 5SA 0488 and offending truck vide Reports Ex.PW-1/A and Ex.PW-1/B respectively.
9. PW-2 Dr. (Mrs.) Vaneeta Kapoor is the radiologist. He examined X-Ray Reports of Sakshi and Manju Malhotraf.
Case No. 259/2/03 Page No. 4 of 11 State v. Jagdish She proved her reports Ex.PW-2/1 and Ex.PW-2/2 in respect of Ms. Sakshi Malhotra and Smt Manju Malhotra respectively.
10. PW-3 Ct. Govind Narain was accompanying Investigating Officer. He had taken ruqqa Ex.PW-7/C to police station for registration of FIR. He proved Seizure Memo of the offending truck and the said scooter vide Ex.PW-3/A and B respectively, Arrest Memo Ex.PW-3/D and Personal Search Memo Ex.PW-3/E.
11. PW-4 Sh. Surender Malhotra is the complainant in this case. PW-5 Smt. Manju Malhotra was the pillion rider of the said Scooter.
12. PW-6 SI (retd.) Jai Karan recorded the case FIR No. 52/2001 U/s 279/337 IPC at PS New Friends Colony at 04.30 PM on 28.01.2001 on receipt of ruqqa Ex.PW-7/C. He proved registration of the case FIR Ex.PW-6/A. PW-7 ASI Rohtash Kumar investigated the case.
13. Ld. APP argued that PW-4 the complainant was driving the Scooter and PW-5 Smt. Manju Malhotra was sitting on pillion seat. He argued that they have deposed that the accused was driving the offending truck in a rash and negligent manner and with high speed on public way and hit the said Scooter due to which they suffered grievous injuries. He argued that the owner of the said Truck namely Sh. Gian Singh produced the accused as driver of the offending vehicle. He argued that Mechanical Inspection Reports of offending truck and the said scooter show damages to the said vehicles due to the accident He argued that MLC of the injured persons and X-Ray Reports show Case No. 259/2/03 Page No. 5 of 11 State v. Jagdish that injured suffered grievous injuries due to accident and therefore, the accused is held liable for committing offences U/s 279/338 IPC.
14. Ld. Defence Counsel argued that there is no evidence to prove that the accused was driving the offending vehicle at the time of the said accident. He argued that IO did not get TIP of the accused conducted. He argued that owner of the offending vehicle namely Sh. Gian Singh has not been examined by the prosecution. He argued that PW-4 Surender Malhotra and PW-5 Smt. Manju Malhotra have not identified the accused as the driver of the offending vehicle. He argued that PW-4 and PW-5 have given totally different version regarding the mode and manner of the accident. He argued that the prosecution has failed to prove that the accused was driving the offending vehicle at the time of the accident and further that accident was caused by rash or negligent driving of the accused. He argued that the accused is liable to be acquitted from charges U/s 279/338 IPC in this case.
15. Before examining evidence on record, let us have a glimpse of Section 279 IPC which is reproduced as under:
"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 a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
16. Section 338 IPC is reproduced as under:
"338. Causing grievous hurt by act endangering life or personal safety of others.- Whoever causes Case No. 259/2/03 Page No. 6 of 11 State v. Jagdish 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 five hundred rupees, or with both.
17. Negligence and rashness are essential elements under Section 279 IPC. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. In other words, in rashness criminality lies in running the risk of doing an act with recklessness or indifference to consequences. 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 each case. Negligence is a breach of duty imposed by law.
18. Section 338 IPC speaks of causing grievous hurt by rashness or negligence. This section applies to cases in which without any such intention or knowledge grievous hurt is caused by what is described as a rash and negligent act.
19. In order to sustain charges U/s 279 and 338 IPC, the prosecution is required to prove the following:
(i) The accused was driving the offending vehicle on a public way i.e. Truck No. HR-38C-9791 under Modi Mill Flyover, Mathura Road at 2.20 PM on 28.01.2001, and
(ii) The accused was driving the offending vehicle 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, and Case No. 259/2/03 Page No. 7 of 11 State v. Jagdish
(iii) The accused caused grievous injuries to the complainant (PW-4), Smt. Manju Malhotra (PW-5) and Ms. Sakshi Malhotra by his rash or negligent driving.
20. The case of the prosecution, as unfolded in the statement U/s 161 of the Cr. P.C. of the complainant (PW-1) and Smt. Manju Malhotra (PW-5), is that the accused suddenly swerved the offending truck to left side and as a result, rear portion of the offending truck hit their scooter and therefore, they fell on the road and suffered grievous injuries. According to the prosecution, IO could not record statement of the complainant on 28.01.2001 since the complainant was declared "unfit for making statement". The registration number of the offending truck, and name and address of the accused was noted by a passer-by at the instance of the complainant. In the charge-sheet, it has been stated that on 07.02.2000, the complainant (PW-4) identified the accused in the police station who had come to receive Registration Certificate (RC) of the offending truck.
21. In his testimony, the complainant (PW-4) deposed that 'In the Hospital, HC Rohtash had taken his telephone number and enquired about the accident. This fact was told by HC Rohtash that accident had taken place with a truck. The number of the truck was HR-38C-9871. He knows the number of the truck as he found a slip of paper in his pocket. He had not seen the driver of the truck and therefore, he could not identify the driver nor the police shown him the driver. In his cross-examination by Ld. APP for the State, the complainant (PW-4) stated that HC Case No. 259/2/03 Page No. 8 of 11 State v. Jagdish Rohtash interrogated him in the Hospital at about 03.30 PM. He denied his statement recorded U/s 161 of the Cr.P.C. He denied the suggestion that after the accident, the accused got down and offered him to take hospital. He denied that he had stated number of the offending truck to the police and name of the driver Jagdish.
22. The complainant (PW-4) denied the suggestion that name of the driver was Jagdish and number of the offending truck was HR-38C-9791. He denied the suggestion that the offending vehicle was coming in a high speed and in a rash and negligent manner. He denied the suggestion that accused was driving the truck at the time of the accident.
23. PW-5 Smt. Manju Malhotra deposed that she had not seen the driver of the truck at the spot. She deposed that number of the offending truck was given to her husband by the police when he had gone to take the scooter one week after the incident.
24. It is therefore, evident that the complainant (PW-4) and Smt. Manju Malhotra have not identified the accused as the driver of the offending truck. They have even stated that the number of the offending truck was given to them by the police. The accused was arrested in this case since he was produced by the owner of the offending truck. The prosecution has not examined the owner of the offending truck. The complainant has denied that he identified the accused in the police station. Therefore, it can be held that the prosecution has failed to prove that the accident was caused by the offending truck Case No. 259/2/03 Page No. 9 of 11 State v. Jagdish and further, that the accused was driving the offending truck at the time of the accident.
25. The complainant in his testimony has given a contrary version of manner of accident. In his statement U/s 161 CrPC. he stated that the accused suddenly severed truck to left side of road whereas in his testimony, he stated that the truck came from behind and hit rear side of his scooter.
26. Smt. Manju Malhotra (PW-5) stated that one truck driver while driving the truck hit their scooter and fled from the spot. In her cross-examination, she stated that she does not know which part of the truck hit their scooter. Mechanical Inspection Reports of the scooter and the offending truck Ex.PW-1/A and B show that Hand-brakes and lever were broken and there were scratches on rear bumper of the truck.
27. There is no evidence that the offending truck was driven rashly or negligently and with high speed. According to PW-4, there was a police barrier and the police were checking vehicles. According to PW-5, several vehicles were plying along with their scooter.
28. Therefore, it is hereby held that the prosecution has failed to prove that the accused was driving the offending truck on a public way. The prosecution has failed to prove that the offending truck caused the accident in question. The prosecution has failed to prove that the offending vehicle was driven rashly or negligently and with high speed, and caused grievous hurt to the complainant (PW-4), his wife (PW-5) and Ms. Sakshi Malhotra.
Case No. 259/2/03 Page No. 10 of 11 State v. Jagdish
29. Accordingly, the accused Jagdish is acquitted from charges U/s 279 and 338, IPC.
Announced in the open Court on 24.07.2012 (SANJAY SHARMA) ACMM - 01/SE, SAKET COURTS, NEW DELHI.
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