Delhi District Court
State vs . Manohar on 7 January, 2023
IN THE COURT OF SHRI KAPIL GUPTA
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE
COURTS
NEW DELHI DISTRICT: NEW DELHI
FIR No. : 213/2014
CIS No. : 51494/16
PS : Vasant Vihar
State Vs. Manohar
JUDGMENT
A Case Identification 51494/16
Number
B Name of the Sh. Rakesh Kumar
Complainant
C Name of the accused Sh. Manohar
D Date of commission of 09.03.2014
offence
E Date of Institution 17.08.2015
F Offence Charged Under Section 279/338 of IPC &
Section 134/187 of MV Act.
G Plea of accused Not guilty
H Order Reserved on 12.12.2022
I Date of 07.01.2023
Pronouncement
J Final Order Acquittal
FIR No. 213/2014 State Vs. Manohar Kumar Page 1 of 18
1. In brief, facts of the case as alleged by the prosecution are that on 09.03.2014 at about 10:40 am at CNG Pump, Sector-3, R. K. Puram, Outer Ring Road, Nera Ber Sarai Flyover within the jurisdiction of PS Vasant Vihar, the accused was found driving the vehicle bearing registration no. DL 1LG 9452 in a rash and negligent manner and while driving the said vehicle, he hit a person namely Ram Sufal and caused grievous injuries to him. It is further alleged that he ran away from the spot of incident without helping the injured and thereby committed an offence punishable under Section 279/338 of Indian Penal Code, 1860 & Section 134/187 of Motor Vehicle Act, 1988.
2. After taking cognizance of the offence, the accused was summoned and after compliance of Section 207 CrPC and further after hearing the parties concerned, notice U/s 251 CrPC for commission of offence under Section 279/338 IPC & Sec. 134/187 of MV Act was served upon the accused on 04.04.2016 to which he pleaded not guilty and claimed trial.
3. The accused in his statement under Section 294 CrPC admitted X- ray report of Ram Sufal prepared by Dr. Neha Ex. A1, Mechanical inspection report of vehicle bearing no. DL 1LG 9452 Ex. C-1 and Mechanical inspection report of cycle make Atlas Black colour Ex. C-2 and thereafter, the corresponding witnesses were dropped.
4. In order to prove its case against the accused, the prosecution examined 07 witnesses.
5. Sh. Rakesh Kumar was examined as PW-1 who deposed that on 09.03.2014 at about 10.40 am, he was going to Sector-3, RK Puram for FIR No. 213/2014 State Vs. Manohar Kumar Page 2 of 18 filling CNG in his Car and upon reaching outer ring road flyover near the CNG filling station, he a heard loud noise and stopped his car and saw the injured lying on the road and some implements relating to gardening were also lying on the road and the offending vehicle i.e. a tempo bearing No DL-1G9452 which caused accident had fled away from the spot with the bicycle of the injured. He further deposed that he made call at 100 number and took the injured towards side of the road and blood was oozing from the forehead of the injured and after few minutes, PCR van had come at the spot. He also deposed that he followed the offending vehicle by his car and after a distance of 1 km from spot/after crossing the flyover, the offending vehicle was stationed near a petrol pump and the driver of the tempo was not there and the bicycle of the injured was trapped in the tyre of tempo and in the meanwhile, the police as well as PCR van came there and the police recorded his statement Ex.PW-1/A, prepared site plan at his instance Ex.PW-1/B. He deposed that he went to the police station after two days and saw the accused/driver of the offending vehicle there and identified the accused and the accused was arrested vide Arrest memo Ex.PW-1/C. He deposed that on the day of incident, police seized offending vehicle as well as bicycle of the injured vide seizure memo Ex.PW-1/D & Ex.PW-1/E. He also deposed that the accused was driving the vehicle in rash and negligent manner and hit the bicycle of injured from behind due to which the injured fell down on the road. Accused was present in the court and was correctly identified by the witness. He also identified the photographs of the offending vehicle.
6. In his cross examination he stated that his car was behind the offending vehicle before the accident and the distance between his vehicle and the offending vehicle tempo before the accident was maximum 20 feet and that the offending vehicle was being driven at a very high speed. He FIR No. 213/2014 State Vs. Manohar Kumar Page 3 of 18 stated that the accused was driving rashly and negligently due to high speed of the vehicle. He further stated that he saw the accident from a distance of about 20 feet. He stated that his son had called the PCR from his phone and he had told the police that the offending vehicle had dragged the bicycle of the injured towards the end of the bridge for approximately 1 kilometer and the offending vehicle was found stationed at the end of the bridge in an abandoned condition with the bicycle of the injured trapped in its wheels. He stated that the offending vehicle got stopped/was parked after crossing the bridge and he had stopped his vehicle at the spot of accident.
7. Sh. Ram Sufal was examined as PW-2 who deposed that on 26.09.2018, the incident happened in the month of Holi festival and around four years ago but does not remember the exact date and month of incident and on the said day at about 10:00 am he was going to Munirka for doing his job and when he reached near Ber Sari flyover/Munirka flyover, then one vehicle i.e. a mini bus came at fast speed and hit him from behind due to which he fell down on road and his bicycle got trapped in the said vehicle and he sustained injury and felt unconscious and he regained consciousness in hospital. He identified the photographs of the offending vehicle. He stated that he can identify the accused if shown to him, however, after seeing all the persons present in the court room he stated that the accused was not present. Ld. APP for State sought permission of the court to cross-examine the witness on the point of identification of the offender/accused and the same was allowed.
8. In cross-examination conducted by the Ld. APP for State, accused Manohar Kumar was shown to the witness and it was asked whether he was the same person who was driving the offending vehicle and the FIR No. 213/2014 State Vs. Manohar Kumar Page 4 of 18 witness identified the accused Manohar Kumar as the driver of the offending vehicle which caused the accident. He was asked a court question as to why was he not able to identify the accused earlier and he replied that he could not do the same as he could not see the accused earlier and it was observed by the Ld. Predecessor that there was immense rush and crowd in the court.
9. In the cross examination conducted on behalf of the accused he admitted that there is a way for going and coming under the bridge for pedestrians and denied the suggestion that at the time of accident, he was not crossing the road and voluntarily stated that he was going towards Munirka. He stated that he does not remember whether any car was coming behind him.
The witness was asked the following question:
"Q When you fell down after accident from your bicycle, did your first try to see the driver of the offending vehicle or your try to regain your consciousness and tried to save yourself from other vehicles plying on the road?
And the witness replid that "Ans. I regained consciousness, saved myself from other vehicles plying on the road and then see the driver of the offending vehicle."
He further stated that at the time of accident he did not see the driver of the offending vehicle and he saw him afterwards. He stated that he saw the driver of the offending vehicle for the first time in court. He stated that a bus was coming from behind which hit him and there was no car around at that time and several cars were moving behind his cycle at the time of accident. He stated that he does not remember the registration number of FIR No. 213/2014 State Vs. Manohar Kumar Page 5 of 18 the offending vehicle. He denied the suggestion that he fell down at his own without meeting any accident.
10. Ld. APP for State sought permission to re-examine the witness with respect to particular facts discovered during cross-examination relating to the witness being hit by a bus and the same was allowed. Photographs of the offending vehicle Ex.P1 were shown to the witness and the witness was asked if he can identify the vehicle and what is it called and the witness replied that it is called a mini bus and "isi se takkar hua tha". In his cross- examination on behalf of the accused, he denied the suggestion that he has incorrectly identified the offending vehicle at behest of Ld. APP and had not seen the offending vehicle.
11. Ct. Anil Kumar was examined as PW-3 who verified DL No. 1479/09. The witness was not cross-examined by accused despite opportunity being given.
12. Retired Ct. Dharamvir Singh was examined as PW-4 who deposed that at about 10.45 am, officer handed over DD no. 22B to ASI Rajender regarding an accident CNG Pump, Outer Ring Road, Near Ber Sarai and thereafter, he along with ASI Rajender Singh went to the spot and came to know that one tempo had hit one cyclist and he also came to know that the victim/ injured was shifted to hospital by PCR van. He stated that the public persons who were present at the spot informed them that the Tempo bearing No. DL-1LG-9452 had hit cyclist and was standing at or near Petrol Pump, Ber Sarai Flyover and thereafter, they went to the Petrol Pump, Ber Sarai and found that the above said Tempo was standing and one cycle was entangled in the above said Tempo. He stated that the IO obtained photographs of the above said Tempo along with cycle of the FIR No. 213/2014 State Vs. Manohar Kumar Page 6 of 18 cyclist and the witness identified such photographs Ex. P1 (colly). He further stated that the IO instructed him to remain at the spot and left for Trauma Centre, AIIMS and came to the spot later. He stated that one person namely Rakesh Kumar came to them and introduced himself as a witness of accident and his statement was recorded by the IO. He deposed that on 11.03.2014, he was present in the Police Station and the eye witness Sh. Rakesh Kumar came to the Police Station and after some time the owner of the offending Tempo, Sh. Bunty Pawar had also came to the Police Station along with driver Sh. Manohar Kumar and at the instance of Sh. Rajbir Singh, Sh. Bunty Pawar replied to the notice stating that Sh. Manohar Kumar was the driver of above said offending vehicle and he was driving the vehicle at the time of accident.
13. In the cross-examination he stated that Sh. Rakesh Kumar narrated about the accident when they reached the spot. He stated that public persons were present at the spot who denied to reveal their names and he did not serve notice u/s 161 Cr.PC to the public persons and such persons have not been cited as witnesses.
14. W/Ct. Poonam was examined as PW-5 who proved DD No. 22B vide which information regarding accident was received. The witness was cross-examined on behalf of the accused.
15. Sh. Bunty Pachar was examined as PW-6 who proved deposed that he was the superdar of offending vehicle and stated that driver Manohar Kumar was driving the offending vehicle at the time of the incident. In his cross-examination he stated that he had not seen the accused driving offending vehicle at the time of incident. He denied the suggestion that accused had already left the job prior to incident.
FIR No. 213/2014 State Vs. Manohar Kumar Page 7 of 1816. SI Rajinder was examined as PW-7 who deposed that on 09.03.2014, he along with Ct Dharamvir went to the spot of the accident and came to know that one tempo had hit one cyclist and the victim/ injured was shifted to hospital by PCR van. He deposed that the public persons who were present at the spot informed them that the Tempo bearing No. DL-1LG-9452 who had hit cyclist was standing at or near Petrol Pump, Ber Sarai Flyover and thereafter, they went to the Petrol Pump, Ber Sarai and found that the above said Tempo was standing and one cycle was entangled in the above said Tempo and he took photographs of the above said Tempo along with cycle of the cyclist from his mobile phone and the same were identified by him. He further deposed that while he was present at the spot where the tempo was found along with Ct. Dharamvir, one person namely Rakesh Kumar came to them and introduced himself as witness of the accident and he recorded his statement and prepared the Tehrir and handed over the same to Ct. Dharamvir for registration of the FIR. He stated that he prepared the site plan Ex. PW1/B amongst other documents. He deposed that on 11.03.2014, he was present at the police station and the eye witness Sh. Rakesh Kumar came there and after some time the owner of the offending tempo also came along with driver of the offending vehicle Sh. Manohar Kumar as a notice u's 133 MV Act was already served. Accused was present in the court and was correctly identified by the witness.
17. In his cross-examination he stated that the witness Sh. Rakesh Kumar was already present at the spot of the accident and he had not called him, however, he requested the public but nobody came forward to join the inquiry. He stated that he had found the accused standing along with the tempo across the road where the cycle was also entangled under the tempo FIR No. 213/2014 State Vs. Manohar Kumar Page 8 of 18 when he reached at the spot. He denied the suggestion that the accused was merely standing at the alleged site and has not committed any offence.
18. The statement of the accused U/s 313 CrPC was recorded and all the incriminating evidence were put to the accused and he stated that he was not present at the spot and he has been falsely implicated in the present case. He stated that he had salary dues from the owner and in the month of November 2013, he demanded the balance amount from the owner but owner denied the same and he committed to pay the balance amount in the year 2014 and he was asked to reach near police station Vasant Vihar where the tempo owner and some persons were present and upon demand of his due amount from the owner, he was threatened with dire consequences and was arrested by the police. He also stated that he does not know as to who was driving the offending vehicle at the time of accident.
19. I have heard the arguments put forth by the Ld. APP for the State and by Ld. Defence Counsel. I have also perused the material available on record.
20. Ld. APP argued that prosecution has proved their case beyond reasonable doubt and there is sufficient material on record to prove the guilt of the accused and prayed that the accused be convicted.
21. Per contra, Ld. Counsel for the accused argued that the none of the witness had seen the accused drive the vehicle in a rash and negligent manner and cause injury to the victim. It was further argued that case of the prosecution is full of contradictions and prosecution has failed to prove that the vehicle was being driven in a rash and negligent manner and as the prosecution has failed to prove its case beyond reasonable doubt, FIR No. 213/2014 State Vs. Manohar Kumar Page 9 of 18 accordingly accused be given benefit of doubt and be acquitted of all the charges.
22. Section 279 IPC reads as follows:
Section 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.
23. Further, Section 338 IPC reads as follows:
Section 338. 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.
24. Relevant Section of Motor Vehicles Act, 1988 are as follows:
Section 134 Duty of driver in case of accident and injury to a person When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the FIR No. 213/2014 State Vs. Manohar Kumar Page 10 of 18 vehicle shall--
(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, [by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities], unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause
(a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence; [(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely:--
(i) insurance policy number and period of its validity;
(ii) date, time and place of accident;
(iii) particulars of the persons injured or killed in the accident;
(iv) name of the driver and the particulars of his driving licence.
Explanation.--For the purposes of this section the expression "driver" includes the owner of the vehicle.] Section 187 Punishment for offences relating to accident Whoever fails to comply with the provisions of clause (c) of sub- section (1) of section 132 or of section 133 or section 134 shall be FIR No. 213/2014 State Vs. Manohar Kumar Page 11 of 18 punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both or, if having been previously convicted of an offence under this section, he is again convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
25. Offences under Section 279/338 IPC shall be dealt first.
26. It has been held by the Hon'ble High Court of Delhi in the case titled as Abdul Subhan vs State (Nct of Delhi), (2006) 133 DLT 562 as follows:
"11. 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 304AIPC, 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 and negligent act has to be proved. The only distinction being that in Section 279, rash and negligent act relates to the manner of driving or riding on a public way while the offence under Section 304A extends to any rash and negligent act falling short FIR No. 213/2014 State Vs. Manohar Kumar Page 12 of 18 of culpable homicide. As correctly observed by the learned judge, the rashness or negligence which needs to be established is something more than a mere error of judgment. There is also a distinction between rashness and negligence in that, rashness conveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care. The case in Badri Prasad (supra) was one, where, akin to the facts of the present case, apart from a bare statement made by a witness that the vehicle was being driven at a high-speed, there was no attempt made to establish that there was any rash and/or negligent act on the part of the driver of the vehicle. In these circumstances the court observed: --
6. In the case at hand, I find that except a bare statement made by PW 2 that the vehicle was being driven in a high-speed, no attempt has been made to establish that there was any rash and/or negligent act on the part of the driver-accused. Therefore in my considered opinion prosecution has failed to establish that death was occasioned by either rash and/or negligent driving of the vehicle or any negligent act of accused so as to attract the provisions of Section 279 and/or 304A IPC. Accordingly, conviction and consequential sentences are set aside and the accused is acquitted of the charges. Bail bonds be discharged. The criminal revision is allowed."
27. To prove its case, prosecution examined two private eye witnesses i.e. the injured Sh. Ram Sufal and PW Rakesh Kumar.
28. Sh. Ram Sufal who was the injured stated that after the accident, he fell down on road and his bicycle got trapped in the offending vehicle and FIR No. 213/2014 State Vs. Manohar Kumar Page 13 of 18 he sustained injury and got unconscious and he regained his consciousness in hospital. In view of such deposition by the witness it is observed that he was not an eye witness of the alleged accident due to rash and negligent driving by the accused as he could not see the driver of the offending vehicle and thus his testimony is not material for considering whether the accused had caused the said accident due to his rash and negligent driving.
29. Further, PW Rakesh Kumar stated that at the time of the accident, he a heard loud noise and stopped his car and saw the injured lying on the road and some implements relating to gardening were also lying on the road and the offending vehicle i.e. a tempo bearing No DL-1G9452 which caused accident had fled away from the spot with the bicycle of the injured. It is worthy to note that even though the witness may have seen the offending vehicle hitting the bicycle, however, the witness did not see that it was the accused indeed who was driving the alleged vehicle. Moreover, he had also deposed that he followed the offending vehicle by his car and after some distance, the offending vehicle was stationed near a petrol pump and the driver of the tempo was not there and the bicycle of the injured was trapped in the tyre of tempo. Such deposition also supports the case of the accused as the accused was never seen by the witness either driving the offending vehicle or even with the vehicle after the incident. Moreover, he deposed that he went to the police station after two days and saw the accused/driver of the offending vehicle there and identified the accused. Thus, it can be clearly observed that the witness never saw the accused driving the offending vehicle and in view of the same, it is observed that he was not an eye witness of the alleged accident due to rash and negligent driving by the accused and thus his testimony is not material for considering whether the accused had caused the said accident due to his rash and negligent driving. It is also worthy to note that the witness has FIR No. 213/2014 State Vs. Manohar Kumar Page 14 of 18 made material improvements in his examination as a witness when his testimony is compared to the original complaint given by him. For instance, the witness at the time of his deposition stated that at the time of the accident, he a heard loud noise and stopped his car and saw the injured lying on the road and some implements relating to gardening were also lying on the road, however, the witness did not state such an important fact in the original complaint given by him and such material improvements casts a doubt about the credibility of the witness.
30. The entire prosecution case for the injury caused due to the alleged rash and negligent driving by the accused is based on sole testimony of PW Rakesh Kumar and such witness did not see the accused driving the vehicle at the time of the incident. To prove its case, prosecution did not examine any eye witness of the accident caused due to rash and negligent driving by the accused. Moreover, the remaining witnesses who were formal in nature did not depose any incriminating fact against the accused. Thus, in the absence of any incriminating evidence against the accused and in view of the above discussion, it can be observed that the accused could not have been said to be driving the vehicle at the time of the incident in a manner rash or negligent. Thus, prosecution case of commission of offence cannot be considered to be standing on its own legs without the testimony of any eye witness. It is also pertinent to mention that it is not the case of the prosecution that the accused was apprehended red handed on the spot.
31. It is also pertinent to mention that the IO and other police witnesses who came at the spot should have made an effort to join public witnesses and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses FIR No. 213/2014 State Vs. Manohar Kumar Page 15 of 18 with a notice in writing to join the police proceedings. In view of the facts and circumstances of the case, it is observed that that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on case decided by the Hon'ble High Court of Delhi titled as Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) wherein it was held as follows:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
32. In view of the above discussion it is observed that no sincere efforts were made by the police to join public witness. Moreover, there was no eye witness to the rash and negligent driving of the accused due to which the accident was caused.
33. Further, the statement of the accused recorded by IO cannot be considered to be the conclusive proof of the commission of alleged offence and even the disclosure statement of the accused regarding the FIR No. 213/2014 State Vs. Manohar Kumar Page 16 of 18 said offence cannot be the sole proof of the establishment of the fact of alleged offences.
34. Thus, in the absence of any incriminating evidence against the accused and in view of the above discussion, it can be observed that it could not be proved that the accused was driving in a rash and negligent manner and thus caused the accident.
35. As such, prosecution failed to successfully bring home the guilt of accused Manohar Kumar for the offences punishable u/s 279/338 IPC through the testimonies of examined witnesses and further failed to establish the ingredients of offence alleged against the accused in the present matter beyond reasonable doubt.
36. Let us now consider the offences under Section 134/187 of MV Act, 1988.
37. The provisions under Section 134/187 of MV Act, 1988 deal with responsibility of the driver to provide appropriate medical aid to injured persons. In the present case, it could not be proved that the accused was driving the offending vehicle and caused the accident and thus, there was no duty incumbent upon the accused to provide appropriate medical aid to the injured person and in view of the same, it is observed that no offence under Section 134/187 of MV Act, 1988 was committed by the accused.
38. In view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered opinion that the accused Manohar Kumar is not guilty of offence punishable under Section 279/338 IPC and under Section 134/187 of MV Act, 1988 and accordingly, is hereby acquitted for the FIR No. 213/2014 State Vs. Manohar Kumar Page 17 of 18 offence punishable under Section 279/338 IPC and under Section 134/187 of MV Act, 1988.
Announced in the (Kapil Gupta)
court on 07.01.2023 Metropolitan Magistrate - 07
New Delhi District, Patiala House Courts,
New Delhi
FIR No. 213/2014 State Vs. Manohar Kumar Page 18 of 18