Delhi District Court
State vs . on 12 October, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 9564/2017
Unique Case ID No. -: DLSW020337652017
FIR No. -: 226/2015
Police Station -: BHD Nagar
Section(s) -: 279/337 IPC
In the matter of -
STATE
VS.
VED PRAKASH
S/o Sh. Hari Chand Yadav,
R/o H. no. 20/O Dariyapur Khurd, New Delhi.
.... Accused
Sunita Devi W/o Sh. Sunil
1. Name of Complainant :
Kumar
2. Name of Accused : Ved Prakash
Offence complained of or
3. : 279/337 IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 13.04.2015
offence
6. Date of Filing of case : 29.11.2017
7. Date of Reserving Order : 09.10.2021
8. Date of Pronouncement : 12.10.2021
9. Final Order : Convicted
Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Vikas Deep Sharma, Ld. counsel for the accused.
DEV Digitally signed by
DEV CHAUDHARY
Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 1 of 22 CHAUDHA Date: 2021.10.12
RY 14:30:02 +05'30'
INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Investigation and appearance of accused 3
3. Prosecution Evidence 3-7
4. Statement of accused and defence evidence 7-9
5. Arguments 9-10
6. Ingredients of the offence 10-12
7. Undisputed facts 12-13
8. Rashness or negligence 13-16
8. Presence of accused 16-19
9. Other contentions 19-21
10. Conclusion 21-22
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that on 13.04.2015 at about 04:00 PM, complainant Sunita was going to drop her daughter Soni for tuitions at Sanjay Gupta Institute, Khera turn. While they were crossing the road via a zebra crossing near Yadav Barfi Bhandar, a vehicle of make Maruti Alto, white colour, bearing registration no. DL 9CAB 5304 (hereinafter "offending vehicle") came from the side of Mitrao village and hit the complainant Sunita, while being driven in a rash and negligent matter. The daughter of the complainant had taken note of the registration number of the offending vehicle. It is alleged that the vehicle was being driven by the accused Ved Prakash at the time of the incident and he committed the offences punishable under Section 279/337 of Indian Penal Code, 1860 (hereinafter, "IPC"), DEV Digitally signed by Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 2 of 22 CHAUDHAR DEV CHAUDHARY Date: 2021.10.12 Y 14:30:17 +05'30' for which FIR No. 226/2015 was registered at the BHD Nagar Police Station, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet was filed against the accused. After taking cognizance of the offence, the accused was summoned to face trial vide order dated 29.11.2017.
3. On his appearance, a copy of charge-sheet was supplied to him in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case, notice of accusation under Sections 279/337 IPC was framed against accused Ved Prakash. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Sunita (complainant / injured) PW-2 : Amit (owner of offending vehicle) Priyanka @ Soni (daughter of injured PW-3 :
and eye witness) PW-4 : Munni Devi (PCR caller) PW-5 : Ct. Sunil (proves investigation) PW-6 : Ct. Sanjay (proves investigation) PW-7 : ASI Bachu Singh (IO) DEV Page 3 of 22 Digitally signed by Cr. Case No. 9564/2017 STATE VS. VED PARKASH CHAUDHA DEV CHAUDHARY Date: 2021.10.12 RY 14:30:33 +05'30' PW-8 : Ct. Parveen Kumar MHC(M) PW-9 : SI Rajesh Kumar (IO) PW-10 : Dr. Sunil Dalal (doctor) PW-11 : Ct. Babita (DD writer) PW-12 : W/ASI Harvinder Kaur (Duty officer) DOCUMENTARY EVIDENCE Ex. PW1/A : Statement of Sunita Ex. PW1/B : Site plan Ex. P1- P8 : Photographs of offending vehicle Ex. PW2/A : Notice under Section 133 MV Act Ex. PW2/B : Notice under Section 91 CrPC Ex. PW2/C : Seizure memo of vehicle Ex. PW2/D : Panchnama of vehicle Ex. PW2/E : Indemnity bond of vehicle Ex. PW7/A : Application to RTO Documents of ownership of offending Mark X1 :
vehicle
Ex. PW7/B : Notice under S. 133 MV Act
Ex. PW7/C : Reply to notice under S. 133 MV Act
Ex. PW7/D : Arrest memo
Ex. PW7/E : Seizure memo of DL
Ex. PX : DL of accused.
Ex. PW8/A : Copy of Register no. 19
Ex. PW9/A : Rukka
Ex. PW10/A : MLC
Ex. PW11/A : DD no. 49B
Ex. PW12/A : FIR
Ex. PW12/B : Certificate
Ex. PW12/C : Endorsement on rukka
5. Sunita (PW1) is the complainant and the star witness in the present case, being the injured. She stated on oath that on 13.04.2015, she went to drop her daughter for tuitions. When she DEV Digitally signed by DEV Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 4 of 22 CHAUDH CHAUDHARY Date: 2021.10.12 ARY 14:30:46 +05'30' was crossing through a zebra crossing near barfi bhandar, one Alto bearing registration no. DL 9CA 5304 came from the side of Mitrao Village. The offending vehicle was being driven at a high speed and in a rash and negligent manner. The witness deposed that the offending vehicle hit her and thereafter, the accused fled from the spot. Public persons gathered on the spot and her sister-in-law Munni came there. The witness was taken to the hospital by her sister-in-law. Her daughter had noted down the registration number of the offending vehicle. The witness also identified the accused and the pictures of the offending vehicle in court.
5.1. In her cross-examination, Sunita (PW1) stated that she had partially seen the face of the driver of the offending vehicle. She admitted that the police did not record her statement properly. She further admitted that after the accident, she had gone to her home with her daughter and thereafter, the PCR was called and she was taken to the hospital. She admitted that the police did not record her statement in the hospital and the same was recorded at her home. She further stated that she had only seen the accused partially. However, on court questioning, she stated that she had seen the accused immediately after the incident albeit for a fraction of second. She admitted that in her statement under Section 161 CrPC, it is not mentioned that she had seen either the accused or the vehicle. She denied the suggestion that the accident took place due to her mistake.
6. Priyanka @ Soni (PW3) is the daughter of the injured and an eyewitness to the incident. She entered into the witness box and deposed that on the date of incident, the offending vehicle came DEV Digitally signed by Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 5 of 22 CHAUDHAR DEV CHAUDHARY Date: 2021.10.12 Y 14:31:01 +05'30' from the Mitrao Village while they were crossing the road, hit her mother. Thereafter, she went to her aunt and informed her about the accident. They returned to the place of incident and her aunt had called on 100 number. She stated that she had seen the face of the driver of the offending vehicle and identified him in court. She also identified the pictures of the offending vehicle. 6.1 In her cross-examination Priyanka @ Soni (PW3) stated that the accused had also visited her house for settling the matter. She stated that the site plan was not prepared at her instance and further stated that she reached house of her aunt alongwith her mother, within 10-15 minutes of the accident. She stated that her aunt did not call the ambulance and the PCR responders took her mother to the hospital.
7. SI Rajesh (PW9) is the first IO in the present case. He deposed on oath that on the date of incident, he received the information about the accident through DD no. 49B. After leaving Ct. Sunil at the spot, he went to the hospital, where he came to know that the injured had already left the hospital after taking treatment. He went to the house of the injured and recorded her statement. Thereafter, they went to the spot and he prepared the tehrir. He prepared the site plan at the instance of the injured and stated that he could not find the offending vehicle near the spot. 7.1 During the cross-examination, SI Rajesh (PW9) admitted that he did not lodge any DD entry before leaving the police station, while stating that he had received the information through the DD entry. He further admitted that he did not record any statement of the persons available at the spot. He stated that he did DEV Digitally signed by Page 6 of 22 DEV CHAUDHARY Cr. Case No. 9564/2017 STATE VS. VED PARKASH CHAUDHA Date: 2021.10.12 RY 14:31:18 +05'30' not remember if he had taken any photographs of the spot.
8. ASI Bacchu Singh (PW7) deposed on oath that he was marked investigation in the present case on 26.05.2015. He recorded the statement of the injured and her daughter. He further deposed that the accused had come to the police station after notice under Section 133 of MV Act was served upon him. After interrogation, he was arrested in the present case. The accused disclosed that he had sold the vehicle to one Component Company, Najafgarh and the same was further sold to one Amit Kumar. Thereafter, the IO contacted Amit Kumar and seized the vehicle from him. 8.1 During the cross-examination, ASI Bacchu Singh (PW7) stated that he recorded the statement of the injured at her house. He admitted that he did not serve any notice to Component Company regarding this case and further admitted that there were no eye witnesses in the present case. The witness admitted that he did not inform the police of PS Nangloi regarding arrival at the house of Amit and admitted that no public witness was joined at the time of seizure of the offending vehicle.
9. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
10. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with DEV Digitally signed by DEV Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 7 of 22 CHAUD CHAUDHARY Date: 2021.10.12 HARY 14:31:37 +05'30' Section 313 CrPC. In reply, the accused stated that he is innocent and on 13.04.2015 he was working with a Japanese Company. At 04:00 PM, he was present at South Point Mall, Sector - 56, Gurgaon and he had withdrawn money from ATM there. His colleague Pawan Kumar was with him. The accused further stated that he was not present at the spot when the accident took place. Thereafter, he further stated that he wished to lead evidence in his defence.
11. During the trial, defence led the following oral and documentary evidence-:
ORAL EVIDENCE DW-1 : Ved Prakash (accused) DW-2 : Pawan (colleague of accused) DOCUMENTARY EVIDENCE Ex. DW1/A : Copy of Passbook (OSR)
12. Ved Prakash (DW1) is the accused in the present case, who stated on oath that on 13.04.2015, he was working as a driver at M/s CKM, Manesar. He stated that as part of his duties, he was required to bring and drop Japanese children at a tuition centre at South Point Mall, Gurgaon, from 03:00 to 05:00 PM. Further, on the date of incident, he had withdrawn Rs. 500/- from an ATM at Sector-53 Gurgaon and again from Palam Vihar at 08:10 PM. He further stated that he is not the owner of the offending vehicle and was not in possession of the same on the date of incident. 12.1. In his cross-examination, Ved Prakash (DW1) stated that he had not given the documents to the IO through DD, during the investigation and stated that he had given the documents to the IO directly. He further stated that he has not brought any documents DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 8 of 22 CHAUDHAR Date: 2021.10.12 Y 14:31:57 +05'30' to prove regarding his job at M/s CKM, Manesar. He further stated that he does not know the owner of the offending vehicle Amit and admitted that he has received a notice under Section 133 MV Act.
13. Pawan (DW2) is the colleague of the accused who stated that on the date of incident, he was alongwith the accused at South Point Mall Gurgaon from 03:00 PM to 05:00 PM. After dropping the children to their houses, the accused went back to his home.
13.1. In his cross-examination, Pawan (DW2) deposed that he has not brought any document or ID card to prove that he is an employee at M/s CKM, Manesar. He stated that on the date of incident, his duty was to drop one child, whose name he did not know. He further stated that he did not know the parents or house number from where the accused was supposed to pick up the children. He denied the suggestion that he was deposing falsely as he is a friend of the accused.
ARGUMENTS -
14. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
15. It is argued by the ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the eye-witness to the incident has categorically deposed about the rash and negligent manner in which the accused was driving the offending vehicle. The factum of incident is proved. Further, the other evidence on record has corroborated the version DEV Digitally signed by DEV Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 9 of 22 CHAUDHA CHAUDHARY Date: 2021.10.12 RY 14:32:26 +05'30' of the eye-witness. He contends that the medical record etc. has proved the offences beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
16. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the accused has a solid alibi for the date of incident, as he was on his duty. The accused was not seen at the time of incident and the testimonies of the material witnesses suffer from inherent inconsistencies, thus making them unreliable. No public witness has been brought to the stand and the investigation is defective, thus entitling the accused to an acquittal. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
17. The accused has been charged for the offences of rash driving on public way (S. 279 IPC) and causing hurt by a rash or negligent act (S. 337 IPC) in the present case. Whereas under
Section 279 IPC, the factum of rash or negligent driving likely to endanger human life or cause hurt etc. is in itself the offence, under Section 337 IPC, simple hurt should be caused in pursuance of such rash or negligent act of the accused. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending in a rash or negligent manner, and due to such driving of the accused, the victim suffered injuries.
18. Thus, the gravamen of the offences under Section 279/337 IPC is the act of the accused, done with "rashness" or DEV Digitally signed by Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 10 of 22 CHAUDHA DEV CHAUDHARY Date: 2021.10.12 RY 14:32:49 +05'30' "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... 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. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. 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."
Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
DEV Digitally signed
by DEV
Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 11 of 22 CHAUDH CHAUDHARY
Date: 2021.10.12
ARY 14:34:10 +05'30'
"58. In the case of "negligence" the courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries.
19. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
UNDISPUTED FACTS -
20. At the outset, it is observed that the factum of accident taking place between the offending vehicle and the injured is not in dispute. The identity of the vehicle is also not disputed. The eye- witness PW3 has categorically deposed about the registration number and make of the offending vehicle. The injured PW1 has stated in her deposition that PW3 was accompanying her on the date DEV Digitally signed Page 12 of 22 by DEV Cr. Case No. 9564/2017 STATE VS. VED PARKASH CHAUDHA CHAUDHARY Date: 2021.10.12 RY 14:34:36 +05'30' of the incident and had noted the registration number of the offending vehicle. The registration number of the offending vehicle also finds mentioned in the police complaint Ex. PW1/A, FIR Ex. PW12/A and DD No. 49B, Ex. PW11/A, which was the first information received in the police station regarding the incident. There is no delay in the lodging of the FIR. Therefore, the fact that the injured met with an accident with the offending vehicle, on the date of incident, is duly established. Further, the MLC Ex. PW10/A has proved the injuries suffered by the injured.
RASHNESS OR NEGLIGENCE -
21. The common essential ingredient of the offences charged is rashness or negligence on part of the accused. PW1 has deposed that on the date of incident, while she was crossing the zebra crossing on the road alongwith her daughter, the offending vehicle came. The driver was driving the vehicle at a very high speed and in a rash and negligent manner. The vehicle then hit the injured, which caused her injuries. After hitting the injured, the accused fled in the offending vehicle. PW3 has also deposed about the incident. There is no cross examination of the witnesses on the point of manner in which the offending vehicle was being driven. As such, the said testimonies remain unchallenged.
22. In order to ascertain whether the manner of driving the offending vehicle was indeed rash or negligent, the surrounding circumstances are to be considered. The accident took place in broad daylight. PW1 and PW3 have deposed that the accident took place around 4:00 pm in the summer season of April. It is not the DEV Digitally signed by DEV Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 13 of 22 CHAUDHA CHAUDHARY Date: 2021.10.12 RY 14:35:05 +05'30' case of the defence that there was low visibility owing to weather conditions. The most important factor is the location of the accident i.e. on/near a zebra/pedestrian crossing. The zebra crossing is also depicted in the site plan Ex. PW1/B, which was prepared at the instance of the injured. The place of accident has significance as a zebra crossing is earmarked for safe passage of pedestrians. When a vehicle is near a zebra crossing, an extra duty of care is attributable to the vehicle driver to ensure that no pedestrian is crossing or about the cross the road. The Motor Vehicles (Driving) Regulations, 2017 incorporate this principle. The relevant regulations are reproduced below -
"9 - Precautions to be taken at intersections -
(1) The vehicle shall invariably slow down when approaching a road intersection, a road junction, a pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing if it is likely to endanger the safety of other road users moving onto, or already on, such intersection, road junction, pedestrian crossing or road corner. (2) At intersections and junctions, vehicles approaching from the right side shall have the right of way: Provided that this sub-
regulation shall not apply- (a) when the junction or intersection is being regulated by manual signals by an authorised person, traffic lights or mandatory traffic signs; or (b) when the vehicle is exiting a minor road and entering a major road.
(3) A motor vehicle shall not enter an intersection if the traffic on the intersection has come to a standstill even if it is on the main road or has a signal to proceed.
39 - Pedestrian crossings, footpaths and cycle tracks- (1) While approaching an uncontrolled pedestrian crossing, the driver shall slowdown, stop and give way to pedestrians, users of invalid carriages and wheelchairs.
(2) If traffic has come to a standstill, the driver shall not drive the vehicle on the pedestrian crossing if he is unlikely to be able to move further and thereby block the pedestrian crossing. (3) When any road is provided with a footpath or cycle track, no vehicle shall drive on such footpath or track, except on the directions of a police officer in uniform or where traffic signs permitting such movement have been displayed.
DEV Digitally signed
by DEV
Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 14 of 22 CHAUDH CHAUDHARY
Date: 2021.10.12
ARY 14:35:35 +05'30'
Further, Regulation 11 of the Rules of the Road Regulations, 1989, stipulate as under -
"11 - Right of way - The pedestrians have the right of way at uncontrolled pedestrian crossings. When any road is provided with footpath or cycle track specially for other traffic, except with permission of a police officer in uniform, a driver shall not drive on such footpath or track."
23. In view of the above narration, the driver of the offending vehicle was bound to take sufficient care to ensure that the persons, including the injured, who were in the zone of harm, are not in any danger on account of his driving. Driving at a fast speed regardless of the said fact is clearly culpable negligence in addition of being violative of the prescription in the above regulations. While coming to this conclusion, this Court is cognizant of the fact that merely driving in high speed does not tantamount to rashness or negligence. However, as discussed above, the location of the accident made it incumbent upon the accused to drive safely in a manner which gave him control over the vehicle. Since the offending vehicle was being driven at a high speed without abundant caution and without bothering about the marked pedestrian crossing, this Court has no hesitation to hold that the essential ingredient of the offences is fulfilled in the present case.
24. The observations of the Hon'ble Apex Court in this regard also fortify the above reasoning. In Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 284, the Honb'le Court while adopting the principle of res ipsa loquitur in criminal accident cases, held that negligence can be gathered from the attendant circumstances of the case, after the factum of accident is duly proved. It was also DEV Digitally signed Page 15 of 22 by DEV Cr. Case No. 9564/2017 STATE VS. VED PARKASH CHAUDH CHAUDHARY Date: 2021.10.12 ARY 14:36:06 +05'30' observed, inter alia, as under :-
"15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes -- one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of "culpable rashness" and "culpable negligence" into consideration in cases of road accidents. "Culpable rashness" is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). "Culpable negligence" is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn., 2010).]
16. We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. We may notice that certain doctrines falling in the realm of accidental civil or tortious jurisprudence, are quite applicable to the cases falling under criminal jurisprudence like the present one."
PRESENCE OF ACCUSED -
24. Once it is established that the offending vehicle caused the accident and the same was being driven in a rash or negligent Page 16 of 22 Digitally signed by Cr. Case No. 9564/2017 STATE VS. VED PARKASH DEV DEV CHAUDHARY CHAUDHARY Date: 2021.10.12 14:36:43 +05'30' manner, it is to be ascertained next as to who was driving the vehicle. Ld. APP for the State submits that the it is cogently established that the accused was driving the offending vehicle at the time of accident. Per contra, ld. counsel for the accused has argued that the eye witnesses and injured did not see the accused person and the defence of the accused is that on the fateful day, he was not present at the place of incident, is proved on record by ocular and documentary evidence.
25. PW1 identified the accused from the dock as the person who was driving the offending vehicle. During her cross examination, she admitted that she had partially seen the face of the accused, but stated that on account of the good physique of the accused, she could identify him. She stated that she saw the accused immediately after the accident, for a fraction of second. PW3 is the eye witness of the incident, who has categorically deposed that she saw the face of the driver at the time of the accident. She correctly identified the accused during her deposition and stated that she has also seen the accused after the accident when he came to their house to settle the matter.
26. Interestingly, it is mentioned in the testimony of PW1 that the identity of the accused is not disputed. However, the accused has taken the plea of alibi in his statement under Section 313 CrPC and has led evidence in support of the said plea. He entered into the witness box to depose that on 13.04.2015, he was working with a company by the name of M/s CKM, Manesar and was tasked with ferrying Japanese students for their tuitions at South Point Mall, Gurugram. He stated that on the said date, he was DEV Digitally signed by DEV Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 17 of 22 CHAUD CHAUDHARY Date: 2021.10.12 HARY 14:37:18 +05'30' present at Gurugram and even took out money from an ATM, for which he has relied upon his bank statement Ex. DW1/A (OSR). He stated that neither was he owner of the offending vehicle nor was he in possession of the same on the date of incident. DW2 is his colleague, who has testified in his support.
27. However, in the opinion of this Court, the plea of alibi of the accused is not proved. The accused has not brought on record any documentation to prove his employment. He contended that he had handed over the same to the IO. However, the same could have been easily produced in Court as well. There is no duty slip to prove that the accused was scheduled to and infact completed the said duty of taking children for tuitions. Further, DW2, who purportedly was with the accused on the date of incident, has also not brought any documentation in support of his employment at M/s CKM, Manesar. In the cross examination, the witness could not answer even basic questions with regard to the identity of the children, their parents and their addresses. The witness is thus not reliable and the possibility of him deposing on the behest of the accused, being his friend, cannot be ruled out.
28. In so far as the bank transactions are concerned, the same do not establish the presence of the accused at the ATM machine. The bank statement merely records the withdrawal from an ATM machine on the said date, which could have been done by anyone with access to the ATM card and password. The said document in itself is not sufficient to place the accused at the ATM machine at the time of incident. The fact that M/s CKM, Manesar has credited some amount in the said account of the accused also DEV Digitally signed by Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 18 of 22 CHAUDHA DEV CHAUDHARY Date: 2021.10.12 RY 14:37:58 +05'30' does not establish the employer-employee relationship. It is also not in dispute that the offending vehicle was once owned by the father of the accused. The present owner purchased the same in September, 2015, i.e. after the incident.
29. Accordingly, there is sufficient evidence on record by way of the ocular testimony of the main witnesses to prove that the accused was driving the offending vehicle on the date of incident. The plea of alibi raised by the accused is not proved and the same is liable to be dismissed. The accused has failed to explain as to why would the injured implicate the accused falsely, without any previous enmity or acquaintance.
OTHER CONTENTIONS -
30. Ld. counsel for the accused has raised certain other contentions in support of his defence, which are discussed below -
A. PCR Caller Munni - Ld. counsel has laid great stress on the fact that there are contradictions on the point of conveying information to the PCR caller Munni. PW1 has stated in her deposition that her daughter (PW3) informed Munni (PW4), who came to the spot. However, in her cross examination, she stated that she alongwith her daughter reached home after accident and informed about the same to PW4. PW3 has also stated similarly. She stated that she went to PW4 and they returned to the spot. She admitted that her statement recorded by police mentions that she informed via telephone. PW4 has deposed that PW3 had come to her house to inform about the accident and thereafter she went to the house of PW1. In her cross examination, she stated that she did not DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 19 of 22 CHAUDHAR Date: 2021.10.12 Y 14:38:54 +05'30' visit the spot of accident. Therefore, there is some contradiction on this point. However, in the opinion of this Court, the same is minor and does not affect the core of the prosecution's case. Accordingly, the same has no effect on the merits of the case. Refer: Brahm Swaroop vs. State of Uttar Pradesh (2011) 6 SCC 288. The witnesses were examined after a gap of around 3-4 years after the incident and this fact cannot be ignored.
B. Mechanical Inspection Report - Next contention of the ld. counsel for the accused is that the vehicle in the present case was seized after a delay of more than 2 years. The mechanical inspection was conducted subsequently. As per PW2, he produced the vehicle in the police station on 20.09.2017, i.e. more than two years after the accident. The seizure memo Ex. PW2/A is of the same date. The mechanical inspection report Ex. PW9/B is of the next date. There are certain old damages depicted in the said report. However, the IO has nowhere explained the delay in seizure of the vehicle. Therefore, there is deficiency in investigation on this point. However, it is settled law that defective investigation is not a ground for acquittal as this would tantamount to playing into the hands of the investigator {See: Karnel Singh vs. State of M.P. 1995 (5) SCC 518}. The contradiction that PW2 has stated that he handed over the vehicle at PS while PW6 says it was handed over at his house, is minor and does not affect the merits of the case.
D. Photographer not witness - Ld. counsel has argued that the IO has not made the photographer as a witness. IO PW7 has also admitted that he has not made the photographer as a witness. The said objection is in nature of an objection on the mode of proof DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 20 of 22 CHAUDHA Date: 2021.10.12 RY 14:39:35 +05'30' of proving the photographs. However, perusal of record reveals that at the time of exhibition of said photographs Ex. P1-P5 during the testimony of PW1, no objection with regard to mode of proof was taken. When at the time of exhibition of the documents, objection with regard to mode of proof is not taken, the same is barred at subsequent stages after the said document is exhibited. Reliance is placed on R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswani & V.P. Temple (2003) 8 SCC 7 in this regard. Therefore, this objection is liable to be rejected.
E. Injuries and MLC - The last contention of the ld. counsel is that the injuries do not corroborate the testimony of the injured. As per the MLC Ex. PW10/A, the injured has abrasion injuries at ring finger, elbow, thigh and knee. However, this objection is also liable to be rejected as the said injuries fulfil the requirement of simple hurt under Section 337 IPC and further it cannot be presumed that rash and negligent driving can only be presumed if the victim sustains grievous injuries only. The objection with regard to non-joining of public witnesses is duly explained by the IO by deposing that no eye witnesses were found. Further, the prosecution has examined PW3, who is an eye witness and is found to be reliable. In terms of Section 134 of the Indian Evidence Act, 1872, the evidence is to be weighed and not counted.
CONCLUSION -
31. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The DEV Digitally signed Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 21 of 22 CHAUDH by DEV CHAUDHARY Date: 2021.10.12 ARY 14:40:18 +05'30' testimony of the injured alongwith the evidence of the eye-witness, when viewed in light of the circumstances of the case, has proved beyond reasonable doubt that the accused was driving the offending vehiclein a rash and negligent manner, on the date of incident. His presence of the spot is also established by the star witnesses and the defence put by him does not inspire confidence. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. Even though there are deficiencies in the investigation done in the present case, but the same when viewed in light of the other evidence on record, are immaterial. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences beyond reasonable doubt.
32. Resultantly, the accused Ved Prakash is hereby found guilty for offences under Sections 279/337 of the Indian Penal Code, 1860 and is convicted accordingly. Let the convict be heard separately on sentencing.
ORDER -: CONVICTED Pronounced in open court on 12.10.2021 in presence of accused person.
This judgment contains 22 pages and each page has been signed by the undersigned.
Digitally signed by DEV DEV CHAUDHARY
CHAUDHARY Date: 2021.10.12
14:41:02 +05'30'
(DEV CHAUDHARY)
Metropolitan Magistrate - 07
South-West District, Dwarka Courts,
New Delhi, 12.10.2021
Cr. Case No. 9564/2017 STATE VS. VED PARKASH Page 22 of 22