Delhi District Court
State vs . Jitender on 1 December, 2021
IN THE COURT OF AMARDEEP KAUR, METROPOLITAN
MAGISTRATE-06, NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI
JUDGMENT
STATE Vs. JITENDER FIR NO. : 123/2012, U/s 279/338 IPC & 3/181 MV Act PS : PARLIAMENT STREET CNR NO. DLND02-000867-2012 A. CIS No. of the Case : 44526/2016 B. Date of Institution : 11.12.2012 C. Date of Commission of : 09.08.2012 Offence D. Name of the complainant : Veer Devender Singh S/o Sh Bhupender Singh R/o H. No. 33D, Kartar Nagar, Jhalander, Punjab.
E. Name of the Accused, his : JITENDER Parentage & Addresses S/o Sh. Badalo Singh R/o Village Makhi, District Unnao, UP.
F. Offence complained of : U/s 279/338 IPC & 3/181 MV Act G. Plea of the Accused : Pleaded not guilty and claimed trial.
H. Order reserved on : 16.11.2021 I. Date of Order : 01.12.2021 J. Final Order : Acquittal u/s 279/338 IPC Conviction u/s 3 r/w181 MV Act State Vs. Jitender FIR No.123/2012 Page No. 1 /11
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. The present FIR under Sections 279/338 India Penal Code (hereinafter referred to as "IPC") emanates from DD No.36 dated 09.08.2012, Police Station Parliament Street regarding a road accident at Talkatora Road in front of Kothi No.16, New Delhi within the jurisdiction of Police Station Parliament Street on 09.08.2012 at about 10.35 pm. As per the Prosecution, accused Jitender (hereinafter referred to as "the accused") was driving a Tempo Eicher car bearing registration number DL 1LM-6273 in a rash and negligent manner so as to endanger human life and personal safety of the others and while so driving the said vehicle, hit against a pedestrian Veer Devender Singh @ Lucky and caused grievous injuries to him. It is further alleged by the prosecution that the accused did not have a valid driving license at the time of incident. Accordingly, the accused was charge-sheeted for offences punishable under Section 279/338 IPC & 3/181 MV Act.
2. The charge sheet against the accused was filed in the court on 11.12.2012 upon which cognizance was taken on the same date. Accused appeared before the Court on summons and copy of charge-sheet along with other documents under State Vs. Jitender FIR No.123/2012 Page No. 2 /11 Section 207 Cr.P.C. was supplied to him.
3. Notice was framed against the accused vide order dated 30.05.2013 for the offence punishable under Section 279/338 IPC & 3/181 MV Act, to which the accused pleaded not guilty and claimed trial.
4. Thereafter, the matter was listed for Prosecution Evidence.
In Prosecution Evidence, the Prosecution examined 06 witnesses in support of its case including eye witnesses HC Hari Bhushan (PW1) and Constable Ravinder (PW6), DD writer ASI Bir Sen (PW3), Record Clerk from RML Hospital Jai Prakash (PW-2) to prove the MLC of the injured, owner of the offending vehicle Sh Gopi Ram (PW-4) and finally the investigating officer Retd SI Balwainder Singh (PW-5).
5. Vide separate statement under Section 294 Cr.P.C, the accused admitted the formal documents i.e. mechanical expert report of vehicle bearing no. DL-1LM-6273 Ex. A, X- Ray report Ex. B, Superdarinama of offending vehicle no. DL-1LM-6273 Ex. C and photographs of the vehicles Ex. P(colly.). Consequently, remaining prosecution witnesses which were essentially formal in nature were dropped.
State Vs. Jitender FIR No.123/2012 Page No. 3 /11
6. On 27.10.2021, statement of accused under Section 313 Cr.P.C. was recorded wherein accused submitted that the present case is false and fabricated and that he does not wish to lead defence evidence.
7. Final arguments heard on behalf of both parties.
8. Before appreciating the evidence, I deem it fit to reproduce and discuss the relevant provisions which are as follows:
(a) Section 279 IPC has been defined in the code as:
"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."
(b) Further, the accused has also been charged with Section 338 IPC which has been defined as:
"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 State Vs. Jitender FIR No.123/2012 Page No. 4 /11 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."
(c) Additionally, the accused has further been charged with section 3 read with 181 of MV act which essentially lays that a person found driving a motor vehicle in any public place without holding an effective driving licence issued to him authorising him to drive such vehicle, he shall be punished in contravention of this condition in accordance with section 181 of Motor Vehicle Act.
9. Now "rashness" for the purpose of above said sections, has been understood to mean a hasty act done without considering the possible result. The criminality lies in running the risk of doing an act with indifference to consequences. Criminal negligence on the other hand is the gross and culpable neglect to take 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.
State Vs. Jitender FIR No.123/2012 Page No. 5 /11 Essentially, criminal negligence is the breach of duty towards others.
10.It is a settled preposition of law that rash and negligent behavior has to be examined in light of the facts and circumstances of a given case. The two are incapable of being construed or seen in isolation and must be examined in light of the attendant circumstances.
11.This court has perused the evidence placed on record in light of the above said ingredients and contending arguments and has returned the finding of acquittal u/s 279 and 338 IPC for the below said reasons:
(a) "Rashness" and "Negligence" as defined by code not proved In the case in hand, while the prosecution has alleged that the accused was driving the vehicle in the rash and negligent manner on a public way, no efforts have been made to establish the same.
Firstly, the victim/injured PW Veer Devender Singh has not been brought forth by the prosecution to prove the alleged negligence/rashness on part of the accused and State Vs. Jitender FIR No.123/2012 Page No. 6 /11 consequential injuries incurred by him. Further the eye witnesses PW-1 HC Hari Singh and PW-6 Ct Ravinder have only made a bare submission that the accused was driving the vehicle at a "high speed". However, both the eye witnesses along with the IO (PW-5 ASI Balwinder) have failed to mention as to what was the permitted speed of the vehicles at the site of incident and what was the speed at which the offending vehicle was been driver. Further no evidence in regards to length of tyre skid marks is available to allow the court to take an objective view as to the speed of the vehicle.
Even otherwise, merely because the offending vehicle was driving at a "high speed", it cannot be said that the vehicle was being driven negligently. Honorable Supreme Court, in State of Karnataka vs Sathish 1998(8) SCC 493, held that merely because a vehicle was being driven at a high speed, it does not bespeak of either 'negligence' or 'rashness' by itself. "High Speed" is a relative term and it is for prosecution to establish as to what is meant by high speed in the facts and circumstances of the case and how it can be inferred as rash or negligent qua other vehicles, persons and property on the public way. In absence of any material on record no presumption of State Vs. Jitender FIR No.123/2012 Page No. 7 /11 rashness or negligence can be drawn by invoking the maxim "res ipsa loquitur".
In the present case therefore, merely because there is an allegation that the accused was driving the offending vehicle at a high-speed, it cannot be said that prosecution has successfully established that vehicle was driven in a rash or negligent manner.
(b) Possibility of Accident/ error of judgement cannot be ruled out.
While the collision of the offending vehicle with the injured/victim is reported to have occurred after dawn at around 10.35 PM, no submissions have been made in regards to the light, road or weather conditions on the spot to allow the court to evaluate if the collision was a consequence of rash and negligent driving or was it a result of an accident arising out of a pure error of judgment.
Prosecution witnesses have also made no submission in regards to the acts of victim/injured, who was a pedestrian, that if he was crossing the road at the designated point or that he emerged unexpectedly in the State Vs. Jitender FIR No.123/2012 Page No. 8 /11 rightful path of the offending vehicle contributing or causing the said accident. Even the site map does not provide any indication in this regard.
In absence of any evidence regards to relevant determinant factors, therefore, the possibility of a pure accident independent of the acts of the accused cannot be ruled out.
(c) Presence of eye witnesses on spot doubtful The eye witnesses to the incident-PW-1 & PW-6 are both police officials. However, nothing has been placed on record to establish that both were chance witnesses and not planted or interested in nature. No duty records or DD entry etc. have been placed on record by the prosecution to prove the credibility of the said witnesses which the prosecution was bound to do in the instant case, since the victim/injured, who was the star witness of the case, was not examined on oath, to bring home the guilty of the accused.
It is a settled law that the testimony of the formal witnesses has to be taken with a pinch of salt. In the instant case, in the absence of the deposition of the prime State Vs. Jitender FIR No.123/2012 Page No. 9 /11 witness of the incident i.e. the victim/injured, the testimonies of witnesses PW-1 and PW-6 cannot be given enough weight-age.
12. It is trite in criminal jurisprudence that prosecution is under obligation to prove its case against the accused beyond reasonable doubt. However, it is clear from the aforesaid discussion that in the instant case, the prosecution has not been able to discharge its onus, benefit of which must accrue to the accused.
13. This court is of the view that in the present case the prosecution has failed to establish the case against the accused beyond reasonable doubt that the offending vehicle was driven in negligent or rash manner. Accordingly, offence under section 279 IPC is not made out. Further, as a corollary, it cannot be said that the injuries caused to the victim/injured were a consequence of the rash or negligent act of the accused. Accordingly, offence under section 338 IPC is also not made out. Accused Jitender S/o Sh. Badalo Singh is therefore acquitted of the offence under section 279/338 IPC.
14. In regards to the offence under section 3/181 MV Act, State Vs. Jitender FIR No.123/2012 Page No. 10 /11 IO/PW-5 has deposed on oath that the accused did not produce the original of his Driving License during the investigation and only placed a photocopy of the same which was seized vide seizure memo Ex. PW-5/D. The said license was clearly not valid at the time of incident i.e. 09.08.2012. The accused did not take any effort to rebut the allegations of the prosecution by placing on record any authorization in his favor as required by section 3 of Motor Vehicle Act or by offering any other plausible explanation.
15.Thus, the prosecution has successfully established that the accused was driving the vehicle on the date of incident without any authorization, consequently, committing an offence under section 3/181 Motor Vehicle Act.
16.Accused Jitender S/o Sh. Badalo Singh is therefore convicted of the offence under section 3/181 MV Act.
17. Copy of this judgment be given free of cost to the accused.
Announced in the open (AMARDEEP KAUR)
Court on 1st December, 2021 MM-06/NDD/PHC
State Vs. Jitender
FIR No.123/2012 Page No. 11 /11