Delhi District Court
State vs . on 21 May, 2022
Lr
DLSE020244442018
IN THE COURT OF METROPOLITAN MAGISTRATE-06 AT SOUTH EAST DELHI
(Presided Over by SH. ANIMESH KUMAR)
Cr CASES/4898/2018
STATE VS.
JUDGMENT
Date of its institution Name of the complainant Date of Commission of offence Name of the accused Offence complained of Plea of accused Case reserved for orders Final Order Mohit 400/17 Kalkaji 279/338 IPC & 146/196 MV Act 06.08.2018 Sh. Lakshman Batra, S/o Late Sh. Lekh Raj Batra, Rio H. No. 1221, MS Block, 3 Floor, Timarpur, New Delhi.
23.08.2017 Mohit Kumar, Sfa Sh. Suresh Kumar, Rio H. No. 0-381/6, Mandoli Extn., New Dethi.
279/338 IPC & 146/196 M V Act Not Guilty 09.05.2022 Corviction . Date of orders 21.05, 2022 BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Vide this judgment, | seek to dispose off the case of the prosecution filed against the accused Mohit Kumar for having committed the offence punishable u/s 279/338 of Indian Penal Code, 1861 (hereinafter referred as "IPC") & 146/196 of Motor Vehicle Act, 1988 (hereinafter referred as 'M V Act').
2. Briefly stated, as per the case of prosecution, on 23.08.2017, the complainant was returning home from his office situated at Devika Tower, Nehru Place. At about 07:50 PM, when he was crossing the road, the accused (who was driving the motorcycle bearing no.
DL 5SAV 2528 at a high speed) had hit him from the side. Due to the impact, the complainant fell down on the road and suffered multiple injuries. He was initially shifted to Sukhda hospital where first aid was given to him. However, since the nature of injuries was serious, he was shifted to Fortis Hospital.
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused. Thereafter, notice was framed against the accused vide order dated 27.04.2019 u/s 279/338 IPC and 146/196 M V Act ta which he pleaded not guilty and claimed trial.
4, In order to prove the guilt of accused, the prosecution examined three witnesses:
6 Sh. Lakshman Batra, the complainant was examined as PW-1;
e HC Rakesh was examined as PW-2: and e ASI Virender Pal was examined as PW-3.
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5. PW21 deposed that on 23.08.2017, at about 7.50 p.m. when he reached main road and to cross it, he checked the traffic. When he was crossing the read, one motorcycle bearing No.DL-SSAV-2528 which was driven by accused in high speed was coming from the flyover side. It was driven in a rash and negligent manner and hit PW1 from the side. Due to the impact, he fell down on the road and sustained injuries on his left leg. There were two fractures on it. His hips had also got fractured. Five bones from his left ribs also got fractured and one bone from the right ribs got fractured. His shoulder also got fractured and sustained injury on his head. Someone called the police at 100 number, Before PCR could reach, he was shifted to Sukhda hospital by some public persons. In the hospital, first aid was given to PW1 and accused. He somehow informed his family members and office who had also reached the hospital after some time. His employer also reached at hospital who was also a doctor. On seeing the medical report, he suggested to take treatment from some other hospital as he was suffering from several fractures. Police official also reached Sukhda hospital. He could not give any written statement / complaint to the police at Sukhda hospital. Finally, on 11.12.2017, the police visited 'his house and recorded his statement. Witness correctly identified accused in the court. The said statement is Ex.PW-1/A, PW-2 deposed that on 24.08.2017 at about 04:25 PM ASI Virender Pal handed
6. for registration of FIR. PW2 endorsed on rukka Ex. PW2/A. On the basis of over him rukka rukka, he recorded FIR NO. 400/17 Ex. PW2/B. a, pw-3 deposed that On 23.08.2017 he received DD entry No. 28 regarding accident. Thereafter, he along with Ct Chand Ram went to the spot i.e. Nehru Place bus 3 | \ per XOGes agrenenscnn ane stand where one motorcycle bearing no. DL 5SAV 2528 was standing and injured had left the spot. Thereafter, On 24.08.2017 he received DD NO. 10 from Fortis Hospital Shalimar Bagh regarding MLC. Thereafter, he reached at the Fortis Hospital where he met injured Laxman batra and the rider Mohit Kumar. in the mean time, he met with the daughter of the Injured who informed that her father was not fit for statement. He registered the present case on DD entry on 07.09.2017. He called the accused at PS for interrogation. Accused went to PS and produced his bike. After interrogation PW3 seized motorcycle and relevant documents i.e. DL, RC. Seizure memos of accused, same are Ex. PW3/A to Ex. PW3/C. In the meantime, PW3 arrested and conducted personal search of accused vide memos Ex. PW3/D and Ex. PW3/E. Thereafter, he got conducted the mechanical inspection of the alleged bike. He also recorded the statement of complainant which already Ex. PW1/A. He also verified the documents of alleged bike and filed charge sheet before court.
Accused has also admitted genuineness of document i.e. MLC No. 278/17 u/s 294 CrPc.
After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 22.04.2022. Thereafter, statement of accused was recorded u/s 313 Code of Criminal Procedure, 1973 ('Cr.P.C") on 22.04.2022 wherein all the incriminating circumstances were put to him which he denied and took a defence that he has been falsely implicated in the present case. He chose not to lead defence evidence.
10. During the pendency of the trail, both the parties settled the matter u/s 338 IPC in the sum of Rs. 6,15,000/-. Hence, the accused was acquitted for the offence u/s 338 IPC vide arder dated 12.03.2020.
11. | have heard the Ld. APP and Ld. defence counsel and have perused the case file.
12. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross-examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Also, the injured victim was not examined by the prosecution. Hence, benefit of doubt must be given to the accused.
13. | have considered the rival submissions.
14, Before, discussing the testimonies of PWs, it would be prudent to discuss the legal position involved in the present case.
LAW INVOLVED IN THE PRESENT CASE
15. Section 279 of the IPC provides for the offence of rash driving or riding on a public way. It reads as under:
"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."
ANNE ON ND ena annem renee!
16. On bare reading of the above provision, it becomes clear that there are primarily three essential ingredients which constitute offence of rash driving on a public way. a. Person must be driving or riding on a public way; b. He must be driving in a rash or negligent manner; c. Likely to endanger human life or cause hurt or injury to any person.
17. At this stage, reference may be taken from the decision of the Hon'ble Supreme Court in the case of Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh, wherein the Hon'ble Apex Court has discussed in detail as to what constitutes a rash or negligent act. It interalia held the following:
"A rash act is primarily an over hasty act. It is opposed to 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 flies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence jis 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."
18. Further, in the case of Braham Dass vs. State of Himachal Pradesh (2009) 3 SCC (Cri) 406, while discussing the legal position with respect to an offence u/s 279/304A IPC, the Hon'ble Supreme Court has interalia held the following:
"Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be \ established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
19. Therefore, indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness oF negligence. It should be noted that intention of the person acting rash or negligent act is immaterial. What is important is that he has not taken due care or has done the said act with indifference ta the consequences.
20. Further, it should be noted that there should be direct link between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim. The the Hon'ble Delhi High Court in the case of Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562 has discussed the ingredients which need to be established by the prosecution for convicting an accused u/s 279/304 A IPC. The Hon'bie Court has interalia held the following:
"As observed in Badri Prasad (supra) the essential ingredients of section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under section 279 or section 304A, the commission of a rash or negligent act has to be proved."
91. The above-mentioned. judgment sufficiently enlightens that for establishing accusations u/s 279/338 IPC, prosecution is not only required to establish that the accused was rash or negligent while driving the vehicle, but it is additionally incumbent on prosecution to establish that the causa causans of injuries suffered by the victim was the act of accused.
FINDINGS
22. As discussed above, the most important ingredient which needs to be established by the prosecution in order to bring home the conviction of an accused u/s 279/338 IPC is the "act of rash and negligent driving by the accused". In the present case, in order to prove "rash and negligent act of the accused" the prosecution has primarily relied upon the testimony of PW-1.
23. PW is the victim and eye-witness of the present case. PW in his testimony had categorically supported the case of prosecution. He had given a detail account of the manner in which the accident had taken place consequent to which he had suffered injuries. He had interalia deposed that the accused was driving the offending vehicle in high speed when he had hit him from the side. After getting hit from the motorcycle of accused, PW1 fell down on the road and sustained multiple injuries. He had suffered fractures in his left leg, in his ribs, hip and had also sustained injuries on his head and shoulder. After the accident, PW1 was initially shifted to Sukhda hospital where he was given first aid. However, since PW was suffering from multiples fractures, he was shifted mene senrenenmnnnenet "
some other hospital PW had car 3 "et io some ather hospital. PW had correctly identified the accused in the Court and had also identified the offending vehicle from the photographs available in the judicial record, #, PW 1 was duly cross-examined by Ld. Counsel for the accused where he had fF + naintained his stand. He had denied the suggestions that he was crossing the road te board the bus and there was no motorcycle on the road. He alsa denied the suggestion that the accused had not hit him with his motorcycle.
25. Hence, the factum of accident by the offending vehicle being driven by the accused and injuries suffered due to the impact could be proved by PW1. The fact that PW1 had suffered multiple injuries could be corroborated fram his MLC which has been admitted by the accused. As per the said MLC, the complainant PW1 had suffered injuries on his head, left leg and chest. Swelling and tenderness was also reported on his leg and the nature of injuries was reported to be grievous.
26. Apart from the testimony of PWT, the factum of accident could also be proved from the testimony of PW3, the |O of the present case. Perusai of his testimony would clearly suggest that he had found the offending vehicle in an accidental condition when he had visited the spot after receiving the information of accident. He had also visited the Fortis hospital where the complainant was admittec after the accident. He had also proved on record the factum of seizure of offending vehicle of the accused and documents ie.
registration certificate and driving license of the accused. ~ 2? Further, the factum of accident could also be corroborated from the mechanical inspection report which was admitted by him us 294 CrP.C. As per the said mechanical set WORMED . prone ccener went?
&, sepection report, mult rest INspe i ple fresh damages were reported on the offending vehicle, Front : G 2. FO head fight af the offenci i head ig offending vehicle was scratched, right side petrol tank was scraiched andle bar was 5 i _ handle Dar was pressed, right foot rest was damaged and right side read handie/side cover was also reported to be damaged
28. Prosecution had relied upon the testimony of PW1 to prove that the offending vehicle was being driven by the accused in a high speed. | am conscious of the fact that high speed simpliciter is not sufficient enough to prove rashness or negligence on the part of accused in a case u/s 279 IPC. However, in the instant case, the factum of rashness and negligence could be inferred from the nature of injuries suffered by the complainant. As discussed above, he had suffered multiple fractures which could not have been sustained in a normal course i.e. when the offending vehicle would have been driven properly within speed limits. The fact that the complainant had sustained injuries of such a grave nature could only indicate about the degree of impact of accident, Injuries of such nature could not have been caused by a motorcycle ordinarily unless the same was being driven at a very high speed in a rash and negligent manner.
29. During the final arguments, Ld. Counsel for the accused had contended that there were material contradictions in the testimony of complainant PW1 in as much as he had mentioned incorrect number of the offending vehicle. It was aiso argued that statement of the complainant was recorded by the police after the gap of more than three months, and, therefore, testimony of PW1 could not be relied upon.7
10 | af witness is immaterial and cannot be a ground to disbelieve him if his testimony is itis a settied proposition of law that minor contradictions appearing in the testimony corroborated in material particulars. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of State (Dethi Administration) & Ors. vs. Laxman Kumar AIR 11986 SC 250. Relevant extract of the judgment is reproduced below:
31.
"There iS some amount of discrepancy in the evidence of the witnesses in regard to the details and Mr. Singh highlighted this aspect in his submission. it is common human experience that different persons admittedly seeing an event give varying accounts of the same. That is because the perceptiveness varies and a recount of the same incident is usually at variance to a considerable extent. Ordinarily, if several persons give the same account of an event, even with reference to minor details, the evidence is branded as parrotlike and is considered to be the outcome of tutoring. Having read the evidence of these witnesses with great care, we are of the view that the same has the touch of intrinsic tuth and the variations are within reasonable limits and the variations instead of providing the ground for rejection, add to the quality of being near to truth."
Similarly, in the case of Balvir Singh vs. State of Madhya Pradesh, Cri. Appeal No. 1115/2010 decided on 19.02.2019, the Hon'ble Supreme Court has stated minor discrepancies in the testimonies of eye-witnesses do not shake their trustworthiness.
32. in the instant case, it should be noted that in the instant case, it should be noted that there are indeed certain contradictions in the testimony of complainant PW1 regarding the registration number of offending vehicle. In his examination-in-chief, he had deposed that number of offending vehicle was DL SSAV 2528 which was incorrect. The il sete canenennenecne weve va correct number of the offending vehicle was DL 5SAV 2528. When he was cross- examined by Ld. APP with the permission of the Court, he had correctly admitted that the correct number of offending vehicle was DL 5SAV 2528. It appears that the complainant nad mixed up two of the digits of offending vehicle. It is a minor contradiction in the testimony of complainant. It does not go the root of the prosecution's case. It is a human error which would not be sufficient enough to discredit the testimony of PW1 in its entirety.
33. Also, it should be noted that PW1 had suffered multiple fractures due to which his statement was not recorded by the police immediately after the accident. He was not ina fit state to give his statement. Although, there is indeed certain delay in recording of statement of PW1, however, the same would not discredit the testimony of PW41 in its entirety. FIR was registered without any substantial delay on the very next day of the accident. 1O had also visited the hospital without any delay.
34. At the stage of recording of statement of accused u/ 313 Cr.P.C, the incriminating materials were put up before him. The accused had denied the same and stated that he was falsely implicated in the present case. He had stated that on the date of incident, he found the complainant in an injured condition when he was returning home from his office. He had taken the complainant to the hospital on a car. At the hospital, he had met the 1O of the present case. He had taken the 10 to the spot. It should be noted that the statements given by the accused u/s 313 Cr.P.C are not supported by any evidence. He did not lead defence evidence to prove his claims. Hence, these statements would be of no help to the accused.
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35. In so far as culpability for the offence punishable u/s 146/196 MV Act is concerned, it should be noted that prosecution has miserably failed to prove the same. None of the prosecution witnesses depose anything on this aspect. Even the 1O remained silent on this aspect that the accused was driving the vehicle without any valid insurance on the date of incident. Burden to prove its case always lies on the prosecution and this burden never shifts during the trial.
36. Hence, in view of the above, | am of the considered view that the prosecution has successfully proved the guilt of accused for the offence punishable u/s 279 IPC, however, it has miserably failed to prove the guilt for the offence u/s 146/196 M V Act.
37. Therefore, the accused Mohit stands convicted for the offence punishable u/s 279 IPC. However, he stands acquitted for the offence u/s 146/196 MV Act. t i---
Ani Mop hn en " > Announced in the open court (Animesh Ku ar) oles 2b on 21.05.2022 MM-06, South East Saket! New Delhi It is certified that this judgment contains 13 pages and each page bears my signatures. A nimepl Kum
- > (Animesh Kumar) M4 05]?
MM-06/(SE) New Delhi/21.05.2022 13