Delhi District Court
State vs . Sandeep Sharma on 12 July, 2018
IN THE COURT OF SHRI AMIT ARORA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 62/14
PS : Preet Vihar
u/S : 279/338 IPC
STATE Vs. SANDEEP SHARMA
JUDGMENT
A Unique ID No. of the case 7671/16
B Name of the complainant Sh. Dharamvir Singh
C Name of the accused & his Sandeep Sharma s/o Sh. Beer Pal Sharma parentage and address R/o H. No.1216, Sewa Nagar, Meerut Road, Ghaziabad, UP D Offence Complained of 279/338 IPC E Date of commission of 24.01.2014 offence.
F Date of Institution 26.06.2014
G Offence Charged 279/338 IPC
H Plea of the accused Pleaded not guilty
I Order Reserved on 27.06.2018
J Date of Pronouncement 12.07.2018
K Final Order Convicted for offence 279/338 IPC
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
PROSECUTION'S CASE
1 Accused has been sent to face trial with the allegation that on 24.01.2014
at around 11:30 am near petrol Pump Preet Vihar he was driving a motorcycle bearing no. UP14 AZ 5440 in a rash and negligent manner and he hit the Scooty driven by complainant Dharamvir Singh (PW1) as a result of which the later sustained grevious injuries.
State v. Sandeep Sharma FIR No.62/14 Page no.1 of 11 2 On 24.01.2014 DD No.16A was received at PS Preet Vihar whereby, PW9 ASI Sahansarvir alongwith Ct. Vipul (PW7) reached near Petrol Pump, Vikas Marg where it transpired that an accident has taken place between a motorcyclist and scooterist and the injured has been taken to Malik Redix Hospital. PW9 left for the said hospital and collected the MLC of the injured. Statement of complainant was recorded on the basis of which a rukka Ex.PW9 was prepared and the FIR was registered. IO prepared the site plan, seized both the vehicles. Accused Sandeep who was driving the motorcycle was arrested, mechanical inspection of the vehicle was conducted and after completion of investigation charge-sheet was filed.
3 On the basis of the charge-sheet and after compliance of Sec.207 Cr.P.C., a notice for the offence punishable under section 279/338 IPC was framed against accused and read out to him to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 4 To bring home the guilt against the accused prosecution has examined 09 witnesses in all:
5 In brief, the testimony of the witnesses examined by the prosecution, can be summarized as under:
6 PW1 is complainant Dharamvir Singh who has deposed in terms of his complaint. He deposed that the accused over took him from right side on his bike at a high speed and then suddenly took left turn. When he tried to stop his Activa Scooter, bike of accused hit his scooter as a result of which he fell down and received injuries.
State v. Sandeep Sharma FIR No.62/14 Page no.2 of 11 7 PW2 is record clerk from RT who has proved that the offending vehicle UP 14 AZ 5440 was registered in the name of Sh. Virpal Sharma, father of the accused. PW3 is record clerk from RTO office, who has proved the driving license of the accused. PW6 is the official of National Insurance Company who has proved the insurance policy of the motorcycle driven by the accused.
8 PW4 Dr. Vikas and PW5 Dr. Gopal are the concerned doctors who have examined the injured at Malik Redix Heathcare. PW4 has opined that the nature of injury was grievous vide MLC Ex.PW4/A. 9 PW8 is the Tasminuddin Siddiqui who conducted the mechanical inspection of the offending vehicle as well as the scooter which was driven by the complainant. The reports were proved as Ex.PW8/A and Ex.PW8/B. Except few suggestion, nothing could be elicited from the witness to challenge these report.
10 PW9 is ASI Saransvir, IO of this case who deposed regarding the investigation carried out by him. He has deposed regarding preparation of rukka, registration of FIR, preparation of site plan, seizure of the vehicle. During cross-examination the IO was unable to admit or deny the suggestion that the accident took place due to the negligence of the accused or injured. PW7 is Ct. Vipul who has accompanied the IO and has deposed in accordance with the investigation carried out by PW9.
STATEMENT OF ACCUSED 11 Statement of accused was recorded u/s. 313 Cr.P.C. wherein he denied all the allegations made against him. Accused stated that he was falsely State v. Sandeep Sharma FIR No.62/14 Page no.3 of 11 implicated and was not negligent. He stated that at the time of accident, the traffic signal has turned red and he has slowed the speed however, the complainant who was riding the vehicle at high speed rammed into his bike from rear side and because of being aged, he could not balance his scooty and fell down. He stated that he had accopanied the victim to the hospital on humanitarian grounds however, the complainant demanded expenses from him and later implicated him.
12 Accused has also entered the witness box as a defence witness. He deposed that when he reached Preet Vihar traffic light the signal was red. He applied breaks. The complainant who was driving his scooty hit his motorcycle from back side and fell down. He deposed that complainant was aged and therefore, he received more injury and the complainant was driving in rash and negligent manner.
13 Final arguments have been heard & record carefully perused.
14 Ld. APP submits that complainant has fully supported the case of the prosecution and has deposed about the rash and negligent manner in which the vehicle was driven by the accused and thus, the prosecution has discharged his burden. Per contra Ld. Defence Counsel contends that the accident has occurred due to the negligence of the complainant. He argues that even if the testimony of the complainant is taken into totality alongwith the other surrounding circumstances, the same is insufficient to infer any rash and negligent driving on the part of the accused. Ld. Counsel submits that going by the testimony of the complainant, the vehicle was being driven at the speed of 40 km per hour and the said speed cannot be termed as rash and negligenbt driving. It is stated that at maximum, it is a case of error of judgment and therefore, State v. Sandeep Sharma FIR No.62/14 Page no.4 of 11 accused is entitled to benefit of doubt. It was further argued that the IO has not fairely investigated the matter and has performed his duty while filing the challan. Ld. Defence counsel has relied upon the cross- examination of the IO. It is further argued that it was a case of simple injury which got aggravated as the complainant himself failed to take proper treatment. He has relied upon the cross-examination of PW4 Dr. Vikas who has stated that if proper treatment is not obtained, the sublaxation may be converted into dislocation.
15 I have carefully considered the rival arguments as well as the testimony of the witnesses and the material available on record. It is not in dispute that on 24.01.2014 at Preet Vihar Near Petrol Pump, there was a collision between the motorcycle driven by the accused and the scooter driven by the injured. The fact that the accused was driving the motorcycle was not disputed by him. The only moot question which requires determination is whether the accident took place due to rash and negligent driving of the accused i.e. the accused failed to take reasonable care and precaution which a prudent driver ought to have while driving on a busy road.
16 As accused has been charged for the offences u/s 279/338 IPC, it is pertinent to reproduced those sections.
Section 279 IPC 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".
State v. Sandeep Sharma FIR No.62/14 Page no.5 of 11 Section 338 IPC reads as under:
"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".
17 The essence of Section 279 IPC is that the offender must be driving the vehicle in a rash and negligent manner so as to endanger human life or which is likely to cause hurt or injury any person. The term "negligence" was defined by the Hon'ble Supreme Court in Ravi Kapoor v. State of Rajasthan, AIR 2012 SC 2986 - Negligent means ommission to do something which a reasonable and prudent person guided by consideration which ordinary regulates human appear would do or doing something which are prudent and reasonable person guided by similar consideration would not do.
18 Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without in- tention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the conse- quences. Criminal negligence is the gross and culpable neglect State v. Sandeep Sharma FIR No.62/14 Page no.6 of 11 or failure to exercise reasonable care and proper precaution im- perative to be adopted by a person to avoid causing of injury to the public or a person or an individual."
19 Reverting to the facts of the present case, the entire case of the prosecution rests upon the testimony of PW1 as no other eye witness was cited or examined by the prosecution. Ld. Counsel has vehemently argued that the non examination of an independent witness is fatal to the case of the prosecution and the same creates a doubt on the version of the complainant. However, there is no rule of law that in the absence of independent witness, testimony of the complainant/injured has to be discarded straightaway. It all depends on facts and circumstances of a particular case. It is the quality of the evidence which is material and not the quantity. The Court can take judicial notice of the fact that after an accident many passersby/onlookers gathered at the spot however, they are the persons who are most reluctant to join any police proceedings. It is a common experience that independent public witnesses do not come forward in such cases for various reasons and especially for the reason that they will have to appear before the Court repeatedly. Thus, this argument has no force and the evidence of the injured has to be evaluated on case basis. Here it is not in dispute that PW1 was driving the Scooty (Activa) and as a result of collision with the accused he has also sustained injuries. The injuries received by PW1 are also not disputed except to the extent that they were aggravated due to the lapses of PW1 himself i.e. failure to take proper care.
20 I have carefully perused the testimony of PW1. He has categorically deposed that the accused Sandeep Sharma who was riding a bike on a high speed overtook him from right side and then suddenly took left turn in front of him. He deposed that when he observed and tried to stop the breaks, his bike hit him and he fell down.
State v. Sandeep Sharma FIR No.62/14 Page no.7 of 11 21 He has further deposed that the accident took place due to the negligence of the accused as he came behind and hit his scooty from right side. He has further deposed that accused was driving at a speed above 40 km. PW1 was cross-examined. Despite cross-examination, the accused has failed to elicit anything from the witness to show that the witness was deposing falsely. PW1 denied the suggestion that the accident took place due to his negligence as he was driving in a negligent manner and had hit the motorcycle of the accused. He has further denied that there was heavy traffic congestion. Except few suggestion here and there, nothing material could be elicited from the witness. Pertinent here is to note the statement of the accused u/s 313 Cr.PC wherein he stated that he had applied breaks at a red light as the signal has turned red and it was the complainant who was riding at a high speed and rammed into his bike. Similar is the version of the accused in his deposition as DW1. Now no suggestion was given to PW1 that the bike of the accused was standing at a traffic signal and it was PW1 who hit the bike of accused. Rather a simple suggestion was given i.e., "It is wrong to suggest that I had hit the motorcycle of the accused from behind as I was driving Scooty in a negligent manner.
22 Version of the accused that as the traffic signal has turned red, he has applied breaks is also falsified from the fact that in the site plan Ex.PW1/E there is no red light shown in the direction in which the accused and the complainant were going. Rather the site plan shows that the accident has taken place after the Preet Vihar red light was already crossed. The spot of accident is shown as point A. Now this site plan becomes relevant as it falsify the version of the accused that he had applied breaks as the signal has turned red. In the site plan, there is no traffic red light which can be State v. Sandeep Sharma FIR No.62/14 Page no.8 of 11 seen ahead in the direction in which the traffic was moving. DW1 during his cross-examination, has admitted that no red light is shown in site plan Ex.PW1/E. The preparation of site plan was proved by the IO/PW9. No such suggestion was given to PW9 that there was a red light few meters away from the place of accident. Thus, I find that the plea taken by the accused is an after thought and it is difficult to rely upon the same.
23 Going by the testimony of the complainant, I find that the accused was negligent to take proper care and caution while driving on a road as he suddenly over took the injured and came in his front. It shows that the accused was not following lane driving and after overtaking the complainant from right side, he again took a left turn and came in front of the complainant. Thus, the ingredients of Sec. 279 IPC stands proved. The judgments relied upon by Ld. Defence Counsel i.e. State of Karnataka v. Satish, Abdul Subhan v. State of NCT of Delhi, Ram Avtar v. State of Rajasthan are distinguishable to the facts of the present case. In those cases, the only incriminating evidence deposed by the witnesses was that the accused was driving the vehicle at a high speed. However, in the case in hand the complainant has deposed and has explained the manner in which the accident took place. Thus, reliance placed by the Ld. Defence Counsel on the judgments cited above is misplaced.
24 Lastly, it wa argued by Ld. Defence Counsel that IO/PW7 was unable to tell during cross-examination, whether the accident took place due to the negligence of the accused or injured. I may note here that once a charge- sheet was filed against the accused, same was obviously on the basis of the finding of the IO, that there was evidence to indicate the involvement of accused in the commission of an offence. It is strange that the IO during cross-examination had given such an answer. Be that as it may, State v. Sandeep Sharma FIR No.62/14 Page no.9 of 11 the said does not make much of a difference for a simple reason that the IO in this case was not present at the spot of the accident and therefore, he could not tell this fact.
25 In view of the foregoing discussion, accused is convicted for the offence u/s 279 IPC.
26 Now coming to the issue of the applicability of Section 338 IPC, I am of the considered opinion that it was a simple injury which got aggravated to grievous injury as PW1 did not took proper care of the same. It is appropriate to refer to the cross-examination of PW4 who has opined the injuries as grievous. During cross-examination, he admitted that on 24.01.2014 (date of accident) when he has examined PW1 there was no dislocation and there was some subluxation in AC Joints of the patient. He further admitted that the patient did not turn up for follow up for 2 ½ months. He even admitted that if proper treatment was not obtained for subluxation, it may be converted into dislocation. Similarly, PW5 Dr. Gopal admitted that at the time of preparation of MLC, no grievous injury was found. I have also perused the medical report/OPD proforma of Malikredix Healthcare (Mark A) dt. 14.04.2014 which was enclosed alongwith the charge-sheet. It specifically notes that patient had a shoulder injury however, he has not come for follow up since the day of injury. The complainant/PW1 has not placed on record any other document to show that during the intervening period he was taking treatment from any other doctor or hospital and he has taken all proper care and precaution. In the absence of such a document being placed on record, I am in agreement with the contention raised by Ld. Defence Counsel that the injury was aggravated by the complainant himself as he did not go for regular follow up as a result of which, a simple injury State v. Sandeep Sharma FIR No.62/14 Page no.10 of 11 resulted into turning grievous. Thus, the accused cannot be held guilty for causing grievous injury which is punishable u/s 338 IPC rather from the facts and circumstances, only section 337 IPC is attracted. Accordingly, accused is convicted for the offence u/s 337 IPC.
27 Be heard on the point of sentence separately.
ANNOUNCED IN THE OPEN COURT ON 12.07.2018 (AMIT ARORA) ACMM (EAST)/KKD/12.07.2018 Certified that this judgment was directly typed by my personal AMIT Digitally signed by AMIT ARORA assistant on computer directly on my dictation. DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE....., 2.5.4.20=5d03bd2902bae524e4720 81070b034ee609e5ec0ad1936d93a ARORA 0429d51816814c, ou=HIGH COURT,CID - 6309251, postalCode=110092, st=Delhi, cn=AMIT ARORA (AMIT ARORA) Date: 2018.07.12 16:50:42 +05'30' ACMM (EAST)/KKD/12.07.2018 State v. Sandeep Sharma FIR No.62/14 Page no.11 of 11