Delhi District Court
State vs . Vijender Singh on 15 November, 2018
IN THE COURT OF MS VASUNDHARA AZAD, MM-03, SE, SAKET COURTS, NEW DELHI State Vs. Vijender Singh FIR No.70/10 Police Station: Jaitpur Under Section: 279/338 IPC Date of institution: 05.05.2010 Date of pronouncement: 15.11.2018 JUDGEMENT
a) Serial number of the case 93576/2016
b) Date of commission of offence 02.04.2010
c) Name of the complainant Rajesh Kumar Dev
Vijender Singh
S/o Sh. Kesh Rai
Name, parentage and address of the R/o H. No.F-791, Aali
d)
accused Vihar,
Badarpur, New Delhi.
e) Offence complained of Section 279 /338 IPC
f) Plea of the accused Pleaded not guilty
g) Final order Convicted
h) Date of final order 15.11.2018
BRIEF FACTS AND REASONS FOR THE DECISION
1. Briefly stated, the case of the prosecution is that on 02.04.02010 at about 7.30PM at Meethapur Chowk, Tayar Ki Shop within the jurisdiction of PS Jaitpur, accused Vijender Singh was driving vehicle No. DL- 1PB-0264 in a rash and negligent so as to endanger human life and personal safety of others and struck against the complainant Sh. Rajesh Kumar Dev and caused grievous hurt to him and thereby committed an offences punishable u/s 279/338 IPC.
ACCUSATION AGAINST THE ACCUSED
2. Vide order dated 03.05.2011 passed by the learned predecessor of this Court, notice of accusation for the offenses punishable under Sections 279/338 of I.P.C. was served upon the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. The prosecution in all examined seven witnesses.
(i) PW-1 Sh. Rajesh Kumar Dev who is the injured in the present case has deposed that driver of offending bus bearing No. DL-1PB-0264 drove his bus in a negligent manner as a result of which he came between two buses, sustained injuries and became unconscious.
(ii) PW-2 Nanakchand Sharma is the registered owner of the offending vehicle who received notice u/s 133 MV Act and has deposed that on the said date his vehicle was driven by his driver Vijender. Accused Vijender was correctly identified by PW2 in court.
(iii) PW-3 SI Mahesh has stated that upon receipt of DD No.3.5A regarding accident at Meethapur Chowk he along with Ct. Suraj Pal reached the spot of accident and found that the injured was taken to the hospital and that the driver of offending vehicle had run away from the spot. He has also deposed that on the next day he found the injured in Holy Familly Hosital where IO recorded his statement and sent PW3 to PS for registration of FIR. PW3 has also proved arrest memo of the accused as Ex-PW3/A, personal search memo of accused as Ex-PW3/B, seizure memo of documents of the offending vehicle Ex-PW3/C to Ex-PW3/F and seizure memo of offending vehicle as Ex-PW3/H.
(iv) PW-4 Sh. T. Siddiqui has proved his mechanical inspection report as Ex-PW4/A.
(v) PW5 Dr. Rajendra Singh has proved the MLC of the injured as Ex- PW5/C.
(vi) PW6 SI Jaipal is the duty officer who has proved original rukka as Ex-
PW6/A and FIR Ex-PW6/B.
(vii) PW7 ASI Suraj Pal is the IO in this case who has proved DD No.35A regarding accident as Ex-PW7/A, DD No.38A regarding the fact that injured was taken to Bajrang Hospital as Ex PW7/B and DD No. 47A regarding the fact that injured was taken to AIIMs Hospital Trauma Centre as Ex-PW7/C. After examination of above-said witnesses, PE was closed.
STATEMENT OF THE ACCUSED
4. In his examination under Section 313 CrPC, accused has denied the entire evidence put to him.
DEFENCE OF THE ACCUSED
5. The accused examined witness DW-1 Sh. Tej Singh in his defence who has deposed that at the relevant time of the incident, the accused was present with him at their house in which they were living together on rent and that the offending bus had been parked by the accused in a stationary condition at some distance from their rented house and consequently, no accident was caused by the stationary bus which was parked by the accused and who was present with him at the time of the incident.
ARGUMENTS
6. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established negligence on the part of accused and that he be convicted for offence under Section 279/338 IPC. On the other hand, it has been argued by the learned counsel for accused that accused is innocent as there is no evidence, which will prove guilt of accused to the hilt. I have meticulously perused the evidence led on judicial record by prosecution and defence and also heard their rival submissions carefully.
ANALYSIS
7. So far as the ingredients of offences alleged against accused are concerned, section 279 IPC provides punishment for rash driving or riding on public way and section 338 IPC provides punishment for causing grievous hurt by act endangering life or personal safety of others. These penal provisions are reproduced in verbatim below:
Section 279 IPC: 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.
Section 338 IPC: 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.
8. With these broad legal principles and ingredients of offences discussed above, court may embark upon to discuss the evidence led on judicial record for adjudicating and recording its finding about guilt of accused Vijender Singh.
9. To prove its case for convicting accused for offences u/s 279 and 338 IPC, prosecution has to prove: (1) that on 02-04-2010 at about 07:30 PM, accused was driving bus bearing number DL1PB 0264 in a rash and negligent manner which was likely to endanger human life or likely to cause hurt or injury to other person; and (2) he caused accident resulting in grievous injuries upon the person of the injured/PW1 Rajesh Kumar,. Offence u/s.279 IPC
10.Specifically dealing with charge for offence under S.279 IPC, in order to bring home the guilt of the accused, the prosecution was required to prove the following:
(i) that it was the accused who was driving the offending vehicle on the date, time and place of the alleged accident;
(ii) that it was bus bearing No. DL-1PB-0264 which was being driven by the accused on the date, time and place of the alleged accident; and
(iii) that the offending vehicle was being driven in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person.
Re: Identity of the accused and the offending vehicle
11.In order to establish the identity of accused qua the accident in question i.e. to establish that it was the accused who was driving the offending bus on the date, time and place of the alleged accident, the prosecution has examined 2 witnesses i.e. PW-1 Sh. Rajesh Kumar i.e. the complainant and PW2 Nanak Chand.
12. PW-1 Sh. Rajesh Kumar is the injured in the present case who is also the complainant. As per the prosecution, PW-1 was injured due to rash and negligence driving of the accused who was driving the offending bus at the relevant date and time. During his examination-in-chief, PW-1 correctly identified the accused as the driver of the vehicle in question at the time of the alleged accident. Further, PW 2 Nanak Chand has testified that he received notice under S. 133 MV Act and that on the date and time of the incident, accused was driving the offending vehicle. PW2 was not cross- examined by the accused/defence counsel despite opportunity being given. The law is well settled that if a witness is not cross examined on a particular issue by the opposite party, the evidence of the witness ought to be accepted. The reliance is placed on the judgment of Sarwan Singh vs. State of Punjab (2003) 1SCC 240 wherein it was observed that "it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination it must follow that the evidence tendered on that issue ought to be accepted". Thus from the unrebutted, uncontroverted, unchalleged & unimpeached testimony of this witness, it is proved on record that on the date and time of the incident, the accused was driving the offending vehicle.
13.In view of the above, the prosecution has successfully established that it was the accused who was driving the offending vehicle in question on the date, time and place of the alleged accident.
14.So far as the legal principle of 'plea of alibi' is concerned, it is governed by section 11 of the Indian Evidence Act, 1872 and the burden to prove an alibi is always upon accused who must prove it to the satisfaction of the court. In case of alibi, the person who takes such plea has to prove his case beyond all reasonable doubts. (Gurcharan Singh Vs. State of Punjab AIR 1956 SC 460 & Chandrika Prasad Singh Vs. State of Bihar AIR 1972 SC 109). But, it is also a well settled principle of law that burden of proving commission of offence by accused so as to fasten his liability of guilt, remains on the prosecution and would not be lessened by the mere fact that accused has adopted the defence of alibi. However, once prosecution succeeds in discharging its burden, then it is incumbent upon accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence.
15.However, in the present case, prosecution having successfully discharged its burden by proving involvement of accused as driver of offending bus, it is incumbent upon accused who has taken the plea of alibi to prove the alibi with certainty so as to exclude possibility of his presence at the spot of incident at the relevant place and time. Identity of accused Vijender Singh has been sufficiently proved by evidence led by prosecution on judicial record and refusal of accused to participate in judicial TIP necessitates drawing of an adverse inference against him. Accused Vijender Singh on the other hand has failed to prove his plea of alibi to the satisfaction of the court. No document has been placed on record to corroborate the testimony of DW1 that both accused and DW1 were sharing an apartment on rent. Testimony of DW1 does not inspire confidence of the court. Accordingly, the accused in defence tendered by him has failed to strike down the case of the prosecution that he was present on the spot at the time of incident.
16.Further, the aforesaid plea of the alibi is taken by the accused for the first time in his statement u/s 281 r/w 313 Cr.P.C. and seems to be an after thought and the result of the legal tutoring as no suggestion of whatsoever nature regarding the same is put to any of the prosecution witnesses during their examination. The Hon'ble Apex Court in Harbhajan Singh v. State of Haryana 2011 AIR (SC) 2552 has observed that the accused cannot raise an altogether new defence in the final arguments without cross examining the witnesses on the relevant aspect and without giving an opportunity to the witnesses to explain the same. In view of the aforesaid discussion regarding the plea of alibi of the accused in his statement u/s 313 Cr.P.C., I do not find any force in the aforesaid arguments of the Ld. Defence Counsel.
Re: Manner in which offending vehicle was being driven
17.The identity of the accused as well as the bus-bearing No. DL-1PB-0264 qua the alleged accident having been established by the prosecution, what remains to be proved by the prosecution is that the accused was driving the offending vehicle in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person. The prosecution has examined the main witness namely Sh. Rajesh Kumar/injured who is a natural witness as a witness of the accident. Thus, it is his testimony, which is to be examined for the purpose of this ingredient. The presence of PW-1 at the spot also cannot be doubted in as much as he is himself the injured person who was allegedly hit by the offending bus. Thus, the testimony of the PW1 is completely found reliable and sufficient for proving the commission of offence by the accused. There is nothing on record to rule out the facts deposed by the victim. It is well settled law that it is not the quantity but it is the quality of the testimony that weighs upon the consideration of the Court. Section 134 of the Evidence Act stipulates that no particular number of witnesses shall in any case be required for the proof of any fact. In State of Maharashtra Vs. Suresh Nivsutti, 1997 2 Crimes 257 (Bom), it was observed that the time honoured rule of appreciating evidence is that it has to be weighed and not counted. Thus the law that has developed over the time is that the testimony of a single witness is sufficient to base the conviction of the accused, if it is found to be cogent, reliable and consistent.
18.Having found the testimony of PW-1 to be worthy of reliance, what remains to be adjudicated is whether the manner of driving the offending vehicle by the accused as described by PW-1 satisfies the requirement of Section 279 I.P.C. The requirement of Section 279 I.P.C. is that the vehicle was being driven by the accused in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person.
19.Reliance can be place upon the findings given by the Hon'ble Apex Court in Abdul Sayed vs. State of Madhya Pradesh VII (2010) SLT 724 wherein it was observed that: " Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness." Further, in State of U.P. Vs. Kishan Chand, Appeal (crl.) 29 of 1999, Supreme Court observed that the testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends supports to her testimony that she was present during the occurrence. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
20.I would also like to refer to Kalu @ Amit Vs State (Criminal Appeal no.868/2008, Supreme Court) wherein it was held by the Hon'ble Apex Court that it is well settled that conviction can be raised on the evidence of a sole eye witness if its evidence inspires confidence and in that case, the witness had meticulously narrated the accident and supported the prosecution case and therefore, he was found to be a reliable witness.
21.Hon'ble Supreme Court in case titled "S. N. Hussain Vs. State of Andhra Pradesh, AIR 1972 SC 685" has held as under: "The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. 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 circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.......". It has been further observed in S. N. Hussain (Supra) as under: "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....."
22.Similarly, the Hon'ble Supreme Court of India in paragraph 9 of Mohammed Aynuddin v. State of Andhra Pradesh, (2000) 7 SCC 72 held: "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".
23.When one looks at the site plan Ex PW7/D, it is observed that the position of the deceased therein is in between the offending bus as well as the other vehicle/bus. Also, the mechanical inspection report of the offending vehicle i.e. Ex PW4/A reveals that the bus in question, inter alia, sustained damages in the form of its right side lower central panel being dented as well as its front bumper being dented. This clearly indicates that the offending vehicle was involved in accident. Also, it is apparent from the MLC Ex. PW5/C that when the injured/PW1 was brought to the hospital, he was observed to have suffered grievous injury. Therefore, the testimony of PW1 regarding the accident and the fact that due to rash and negligent act of the accused, he was crushed between two vehicles one of which was the offending bus, has been duly corroborated by his MLC.
24.Further, the Hon'ble Apex Court in case of Balwinder Singh alias Dalbir Singh vs. State of Punjab held that false plea of alibi by an accused is an incriminating circumstance which gives rise to an inference of guilt. In the present case also, as discussed above, the plea of alibi taken by the petitioner has been found to be a false one which is an additional circumstance which further establishes the case of the prosecution that the petitioner was driving the offending bus on the day of incident rashly and negligently.
25.The testimony of PW1 is also completely found reliable and sufficient for proving the commission of offence by the accused. There is nothing on record to rule out the facts deposed by PW1. Further, I do not find any reason for the PW1 to make such kinds of false allegations against the accused. Therefore, the testimony of PW 1which is unimpeachable within itself and is duly corroborated by the site plan, false plea of alibi taken by the accused, mechanical inspection report as well as the MLC of the injured/PW1, which leads to the unequivocal conclusion that the accused due to his rash and negligent driving of the offending vehicle caused grievous injury in the person of PW1.
26.Thus, I do not found any merit in the contentions made by the learned counsel for the petitioner to the effect that the petitioner was not guilty of the commission of crime mentioned above.
Offence u/s.338 IPC
27.For bringing home the charge under Section 338 I.P.C., the prosecution was required to prove that: (1) grievous injury was caused to the person of complainant/injured Sh. Rajesh Kumar, and (2) the same was caused by the accused by doing a rash or negligent act. It is apparent from the MLC Ex. PW5/C that when the injured/PW1 was brought to the hospital, he was found to have suffered grievous injury by a blunt object/weapon. Therefore, the testimony of PW1 regarding the accident and the fact that due to rash and negligent act of the accused, he was crushed between two vehicles one of which was the offending bus has been duly corroborated by his MLC. Hence, the charge against the accused under section 338 stands proved.
CONCLUSION
28.Thus, on the basis of evidence led by prosecution on judicial record, I am of the considered opinion that accident in this case was caused due to rash and negligent driving by accused Vijender Singh who hit the complainant/injured and thereby caused grevious injuries to him. Prosecution has therefore successfully proved its case on record against accused Vijender Singh beyond reasonable doubt. Accordingly, accused Vijender Singh is convicted for offences under sections 279 and 338 IPC.
List for arguments on sentence.
Copy of the judgment be given free of cost to the convict. Let copy of this judgment be placed on the district court website.
Announced in open Court on 15.11.2018.
(VASUNDHARA AZAD) MM-03 (South-East), Saket Courts, New Delhi 15.11.2018