Delhi District Court
Fir No.388/2003: Ps Dbg Road: State vs Ved Prakash Dod: 16.12.2011 on 16 December, 2011
FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 388/2003 PS: DBG Road U/s 279/338 IPC Unique ID No.: 02401R1362172008 J U D G M E N T:
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(a) S.No. of the case : 508/2
(b) Name of complainant : Shri Hari Kishan Bajaj, S/o Late Shri Mastan Chand, R/o 2111, Rani Bagh, Multani Mohalla, Delhi.
(c) Date of commission of offence : 19.12.2003
(d) Name of the accused : Ved Prakash,
S/o Shri Gopi Ram,
R/o H.No.108/E2, Shiv Ram
Park, Nangloi, Delhi.
(e) Offence complained of : U/s 279/338 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 08.12.2011
(h) Final Order : Convicted
(i) Date of such order : 16.12.2011
______________________________________________________________ State V/s Ved Prakash ("Convicted") Page 1 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case in brief, as borne out from the record are that at about 7.30 PM on 19.12.2003, DD No.18A was recorded in PS DBG Road with regard to an accident at Gurudwara Road crossing. Pursuant to the recording of aforesaid DD Entry, IO, SI R.D Yadav alongwith Ct.Pramod Kumar reached at the spot, where DTC bus bearing No.DL1PB/6552 and one scooter bearing No.DL1S/2662 were found in accidental condition. It was reported to the IO that the injured had been removed to Lady Hardinge Hospital by a PCR Van. The IO did not find any eye witness at the spot. IO left constable at the spot and went to Lady Hardinge Hospital and obtained the MLC of injured Shri Hari Kishan Bajaj S/o Late Shri Mastan Chand. At that time, the doctor declared the injured not fit for statement. Thereafter, IO went back to the spot, prepared rukka and got the case FIR registered. IO also prepared site plan on the basis of position of the vehicles standing in accidental condition at the spot as also on the pointing out of one eye witness Abid. The DTC bus (hereinafter referred to as "offending vehicle") and scooter were taken into police possession and the accused present at the spot was arrested.
2. On 21.12.2003, the IO recorded the statement of injured, wherein he disclosed that at about 7.20 PM when he was going on his aforesaid scooter and reached at Gurudwara Road crossing, the offending vehicle came from State V/s Ved Prakash ("Convicted") Page 2 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011 behind and the accused who was driving the same, abruptly turned it towards right side and as such hit his scooter from left side, as a consequence whereof he suffered crush injuries on his left leg.
3. Thereafter, the IO got the offending vehicle and the scooter mechanically inspected and also collected the Duty Slip of the accused from DTC Peera Garhi Depot, alongwith other relevant documents.
4. After completion of investigation, accused stood chargesheeted for offences punishable U/s 279/338 IPC.
5. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments, vide order dated 19.03.2005, Notice U/s 251 Cr.P.C for offences punishable U/s 279/338 IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused, prosecution examined nine witnesses, whereafter the PE in the matter was closed and statement of the accused U/s 313 Cr.P.C was recorded, wherein he abjured all the allegations and claimed that he was not driving the offending vehicle at the time of accident. However, he did not lead any evidence in defence. State V/s Ved Prakash ("Convicted") Page 3 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011
7. I have heard arguments advanced at bar by the learned APP on behalf of State and Shri S.S Mahu, learned counsel for the accused and perused the entire material on record. Before adverting to adjudicating upon the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
8. PW1, Shri Hari Kishan Bajaj, the injured in his evidence stated that on 19.12.2003, at around 7.20 PM he was driving his scooter and had reached at Gurudwara Road Crossing, the offending vehicle came from back side and accused who was driving the same, abruptly turned it to right side, thereby hitting the scooter on left side, as a consequence whereof he suffered injuries on his left leg. He was removed to Lady Hardinge Hospital by PCR van. Subsequently, he was referred to Sir Ganga Ram Hospital. Thereafter, his statement was recorded by the police. He categorically stated that accused was driving the offending vehicle in a zigzag manner and had taken a sudden turn, oblivious of the consequences thereof and as such the accident had happened.
9. PW2, Ct.Prem Kumar in his evidence stated that on the day of accident at about 7.30 PM, he alongwith IO, SI R.D Yadav went to the spot of accident and found the offending vehicle and the said scooter in accidental condition. At the spot it was disclosed to the IO that the injured had been removed Lady Hardinge Hospital by PCR van. The accused was found in State V/s Ved Prakash ("Convicted") Page 4 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011 the offending bus at the spot itself. Thereafter, IO left for Lady Hardinge Hospital after leaving him at the spot. After coming back from the hospital, IO prepared rukka and sent him to PS for registration of FIR. When he came back at the spot after registration of FIR, he saw IO present with an eye witness namely Abid. He further stated that IO took into possession both the vehicles, prepared site plan at the instance of eye witness Abid, accused was arrested, his personal search was conducted, his driving licence was taken into possession and he was released on bail.
10. PW3, Shri T.U Siddiqui, the Mechanical Inspector who inspected the scooter stated that the same was found badly damaged and not fit for road test after the accident.
11. PW4, ASI Rajbir was posted as Duty Officer in PS DBG Road at the relevant time and he has proved on record the case FIR as Ex.PW4/A and endorsement made on rukka as Ex.PW4/B.
12. PW5, Shri S.K Gogia, retired Foreman from DTC in his evidence stated that on the asking of IO he mechanically inspected the offending vehicle and found all the mechanical systems of the bus in order and in working condition.
State V/s Ved Prakash ("Convicted") Page 5 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011
13. PW6, Shri Sukhbir Singh, ATI posted in Peeragarhi DTC Depot in his evidence stated that on the date of accident it was the accused who was driving the offending vehicle from 1300 Hrs to 2200 Hrs. He proved the Duty Slip, issued by DTC Depot Peeragarhi in the name of accused in respect of the offending vehicle as Ex.PW6/A.
14. PW7, SI (Retd.) R.D Yadav, the IO of the case in his evidence has deposed on the lines of PW2, Ct.Prem Kumar.
15. PW8, Shri Rajesh Mehra, Record Clerk from Lady Hardinge Hospital has proved MLC of PW1; whereas PW9 Shri Gaurav Malhotra, Record Clerk from Sir Ganga Ram Hospital has proved the further medical record of PW1.
16. This is all as far as prosecution evidence in the matter is concerned.
17. The learned defence counsel has very vehemently argued that accused was not driving the offending vehicle at the time of accident and as such, the accident did not take place with the offending vehicle. Per contra, learned APP has very vehemently argued that from the evidence of PW1, PW6 and PW7, the prosecution has categorically proved that it was the accused who was driving the offending vehicle as he was assigned the duty of State V/s Ved Prakash ("Convicted") Page 6 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011 driving the offending vehicle, which was plying from New Delhi to Bahadurgarh and as such the defence taken by the accused in the matter is not tenable.
18. In a case U/s 279/338 IPC, the prosecution is required to prove that:
(a) The accused was driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to the property;
(b) In driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or having recognized that there was some risk involved and none the less acted on to take it, and;
(c) Rash and negligence act of the accused was the proximate cause of the injuries sustained by the injured.
19. To connect the accused with the offence U/s 279/338 IPC, it was incumbent upon the prosecution to have proved that the accused was driving the offending vehicle/DTC bus in rash or negligent manner. The law requires that negligence or rashness must be of such a nature which can be described as criminal rashness or criminal negligence, which means that a higher degree of rashness or negligence is the necessity of law, to connect the accused with the offence. A criminal rashness would mean an over hasty act which is done State V/s Ved Prakash ("Convicted") Page 7 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011 without due care and caution and doing an act with recklessness and indifference as to the consequences. Criminal negligence is the failure to exercise the duty with reasonable and proper care and precaution, guarding against injury to the public generally or to any individual in particular. It goes without saying that it is the imperative duty of the driver of a vehicle to adopt reasonable and proper care and precaution and absence of such reasonable proper care and precaution, while driving on the road will definitely amount to criminal negligence.
20. PW1 Shri Hari Kishan Bajaj has supported the case of prosecution with regard to rashness in which the offending vehicle was being driven by the accused on the day of accident. A perusal of site plan Ex.PW7/B shows the position of both the vehicles at the time of accident. The sole defence taken by the accused in the matter that he was not driving the offending vehicle is not tenable in the teeth of overwhelming evidence in this regard; firstly Duty Slip Ex.PW6/A, duly issued by Government Authority clearly establishes that the offending vehicle was handed over to the accused for plying on the date of accident by his department. PW6, who proved the Duty Slip was not crossexamined by the accused. Even otherwise, there is nothing on record to show that PW6 had inimical relations towards the accused in falsely implicating him. A perusal of Ex.PW7/D, i.e the Superdaginama furnished by the IO in the matter further clearly establishes that it was the DTC, who had taken the offending vehicle on State V/s Ved Prakash ("Convicted") Page 8 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011 superdari. PW1 has also categorically deposed about the accident committed by the offending vehicle. PW2 and PW7 when reached at the spot also found the offending vehicle in accidental condition at the spot. Therefore, there is not an iota of doubt that accident took place with the offending vehicle and the accused was driving the same at the time of accident. Now, let us see as to whether the accused was negligent or rash in driving the offending vehicle. Site plan Ex.PW7/B shows the position of both the vehicles at the time of accident. Both the vehicles had barely crossed the red light signal. It is apparent that the accused was in a hurry to move towards Anand Parbat, as he was plying the offending bus which was on an interstate route. Since he had to go in straight direction, there should not have been any reason or occasion for him to have abruptly turned the bus towards his right side. The only reason which could be inferred from the facts and circumstances is that he was in a hurry and he wanted to overtake some vehicle and in the process lost sight of a smaller vehicle going on his right side and as such hit the scooter and caused crush injuries upon the left leg of PW1.
21. The mechanical evidence as also the medical evidence support the case of prosecution. The Mechanical Inspection Report of the offending vehicle Ex.PW5/A clearly establishes that the offending vehicle did not have any kind of mechanical defect. All the systems were in working order. The medical evidence Ex.PW8/A and Ex.PW9/A clearly corroborate the version of PW1 as to how and on which part of his body he suffered injuries. State V/s Ved Prakash ("Convicted") Page 9 of 10 FIR No.388/2003: PS DBG Road: State V/s Ved Prakash DOD: 16.12.2011
22. The testimony of injured/PW1 has remained unrebutted.
23. From the perusal of material on record, it is apparent that the accident in the matter was caused through the offending vehicle by the accused when he was oblivious of the consequences of his sudden turn of his offending vehicle to his right, where PW1 was driving his scooter. It is further clear beyond any shadow of doubt that the injuries suffered by PW1 was direct and proximate cause of the act of rashness of the accused in driving the offending vehicle. Consequently, accused stands convicted for offences punishable U/s 279/338 IPC.
24. Let he be heard on point of sentence on 19.12.2011. A copy of this judgment be supplied to the convict free of cost forthwith.
Announced in the open court (Vinod Yadav)
on 16.12.2011 Chief Metropolitan Magistrate:
Delhi
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