Delhi District Court
State vs Krishan on 20 March, 2024
IN THE COURT OF MS. SAMIKSHA GUPTA
Addl. Chief Metropolitan Magistrate
South West District; Dwarka Courts: New Delhi
Date of Institution : 17.11.2020
Date of reserving judgment : 16.03.2024
Date of Judgment : 20.03.2024
In the matter of :
State Vs. Krishan
FIR No. 351/2017
PS : Sector-23 Dwarka
U/s: 279/338 IPC
1. CNR No. of case : DLSW02-032961-2020
2. Regn. No. of Case : 8597/2020
3. Name of accused : Krishan
S/o Rakesh Kumar R/o H no
103, Village Bagdola, Palam
Village, South West, Delhi,
India
4. Offence charged under Section : 279/338 IPC
5. Plea of accused : Not guilty.
6. Final Order : Acquitted
State represented by : Sh. Rohit Grewal, APP for State.
Accused represented by : Sh. Manoj Yadav, Advocate.
State vs Krishan
FIR No. 351/2017; PS Sector 23 Dwarka
Page No.1 of 13
JUDGMENT
1. It is the case of prosecution that on 29.11.2017 at about 08:15 AM at Jaglan Filling station, Sec-22, Dwarka, accused Krishan was driving a car bearing No. DL 9CAG 0427 rashly and negligently. While so driving, he hit against cab bearing no. DL 1YD 6406 and caused grievous injuries to passenger Deepti Kalia. Thus, prosecution has set up a case u/s 279/338 IPC against accused Krishan.
2. On the basis of charge sheet, notice under Section 279/338 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined seven witnesses, who are as under:
Sr.No Name Nature of Evidence
1. PW-1/Satyawan Singh Owner of victim's cab
2. PW-2/Deepti Kalia Injured / Complainant
3. PW-3/Chander Prakash Mechanical Inspector
4. PW-4/Sunil Sharma Driver of cab bearing no. DL
1YD 6406
5. PW-5 / Insp. Vijay Pal 2nd IO
6. PW-6/ASI Jai Prakash 1st IO
7. PW-7/ SI Durgesh Kumar 3rd IO
State vs Krishan
FIR No. 351/2017; PS Sector 23 Dwarka
Page No.2 of 13
4. Prosecution has relied upon the following documents:
S. No. Exhibits Documents 1. Ex.PW-1/A Five photographs of vehicle DL-1YD-6406
2. Ex.PW-1/C & Reply of notice u/s 133 MV Act Ex.PW-1/D
3. Ex.PW-1/E Seizure memo of documents of vehicle No. DL-
1YD-6406
4. Ex.PW-2/A Statement of complainant/victim given to police.
5. Ex.PW-2/B Site plan
6. Ex.PW-2/C Statement of victim regarding correction in registration number of vehicle
7. ExPW-3/A Request letter for inspection of Maruti Swift car No. DL-9CAG-0427.
8. Ex.PW-3/B Mechanical inspection report of Maruti Swift Car.
9. Ex.PW-4/A Statement of driver of vehicle No DL-1YD-6406 given to IO
10. Ex.PW-4/B Five photographs of Swift Car No. DL-9CAG-
042711. Ex.PW-5/A Notice u/s 91 Cr.PC
12. Ex.PW-6/A Tehrir
13. Ex.PW-7/A & Notices under Section 133 MV Act Ex.PW-7/B
14. Ex.PW-7/C Arrest memo
15. Ex.PW-7/D Seizure memo of documents of offending vehicle
16. Ex.PW-7/E Seizure memo of offending vehicle
17. Ex.A-1 GD no.18 State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.3 of 13
18. Ex.A2 Copy of TIP proceedings 19. Ex.A3 MLC No. 372/17
20. Ex.A4 Copy of FIR
5. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, wherein he claimed that he was innocent and was not driving the offending vehicle at the time of incident.
6. Arguments heard. Record perused.
7. To bring home the charge under Section 279 IPC, the prosecution is required to prove beyond reasonable doubt, the following components:-
(i) the accused was driving or riding the vehicle on public way;
(ii) the said vehicle was being driven rashly or negligently;
(iii) such rashness or negligence was sufficient to endanger human life or likely to cause hurt or injury to some person.
To bring home the charge under Section 337 IPC, the prosecution is required to prove beyond reasonable doubt, the following components:-
(i) The act must result in actual harm or hurt to another State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.4 of 13 person.
(ii) The accused's actions must be either reckless (rash) or careless (negligent).
(iii) The act must be of a nature that it could endanger human life or personal safety.
Similarly, to prove the charge under Section 338 IPC, the prosecution is required to prove, beyond reasonable doubt, the following components:-
(i) grievous hurt has been caused to the victim;
(ii) such injury has occurred due to the rash or negligent act of the accused; and
(iii) such rashness and negligence of the accused has endangered human life or personal safety of others.
8. The evidence of prosecution witnesses in the present case has to be examined against this legal backdrop.
(i) PW1 Satyawan Singh has deposed that he was the owner of Uber Cab make Toyota Etios bearing registration no. DL 1YD 6406. He had given the vehicle to his driver Sunil Kumar 5 years back. After about one month, car was sold by this witness. He correctly identified the vehicle from its photographs. Vehicle was also released on superdari to him.
On being asked by Ld. APP for State, witness stated State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.5 of 13 that he had given his car to his driver Sunil on 29.11.2017 after which the car had met with an accident near petrol pump in Sector 23 Dwarka.
During cross examination, he stated that he had gone to PS where compromise with the accused was done. He admitted that vehicle was not damaged in the accident and passengers did not sustain any injury.
(ii) PW2 Deepti Kalia deposed that on 29.11.2017 she was going to her office in Gurugram in an Uber Cab whose number she could not recall. She had boarded the cab at 08:10 AM from her flat at Sector 22 Dwarka. At 08:15 AM, when the Cab was crossing petrol pump at sector 22 Dwarka, a white Swift Dzire car came at a high speed and hit her cab on the left side. She could not recall the registration number of the car of accused. Due to the impact she sustained fracture in the right collar bone and informed her husband. The driver of offending car also came to her home following the Uber cab. Thereafter, she went to Venkateshwar Hospital. Police was informed on the same day but they met her after 2-3 days of the accident and recorded her statement. When she was called to the PS she could not identify the driver of the offending vehicle due to lapse of 5 years.
On being cross examined by Ld. APP for State, she admitted that the registration number of Uber car was DL1YD State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.6 of 13 6406 and of Swift Dzire was DL9CA 0427. She denied he suggestion that accused Krishan was driving Swift Dzire car and had hit Uber cab and caused the accident. She denied the suggestion that IO had prepared the site plan at her instance. She could not state that the accident took place due to rash and negligent driving of the accused.
During cross examination, she denied the suggestion that offending vehicle was Swift car and not Swift Dzire car.
(iii) PW3 Chander Prakash conducted mechanical inspection of Maruti Swift car bearing registration no. DL9CAG 0427 on 08.08.2018 and prepared its report.
During cross examination, he stated that at the time of inspection, no dent or damage was found on the car.
(iv) PW4 Sunil Sharma deposed that he was driving Uber taxi no. DL1YD 6406 on 29.11.2017. On that day, he had picked up a lady in Sector 22 Dwarka and on reaching petrol pump Sector 22 Dwarka, at around 7-8 AM, one Swift car was exiting from the entry point of petrol pump and suddenly hit his taxi on the left front side of bumper. Witness could not recall the registration number of the offending vehicle. He asked he passenger if she was alright and the passenger informed her that she did not sustain any injury and asked him to drop her at her home. When he was returning to drop the passenger, he called at 100 number. When he reached the house of passenger, police State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.7 of 13 officials met them outside the society. Police officials inquired from him. Driver of Swift car had also come to the society. Police officials asked them to settle the matter. Since there was not much damage to the Uber taxi, matter was settled. Registration number of Swift car was DL9CAG 0427 which he had noted down at the time of accident. He correctly identified both vehicles from their photographs and accused present in Court.
During cross examination, he admitted that photographs at the time and spot of accident were not taken. He also admitted that Swift car had only touched his taxi and no damage occurred in his car. No injury was sustained by him. He also admitted that police did not conduct any proceedings at the spot.
(v) PW5 Insp. Vijay Pal deposed that further investigation of the case was marked to him on 03.12.2017. Complainant Deepti Kalia was called to the spot and site plan was prepared at her instance. Her statement was also recorded. Notice under Section 91 Cr.PC was issued on 14.12.2017 after which investigation was assigned to some other IO.
He was not cross examined despite opportunity.
(vi) PW6 ASI Jai Prakash deposed that on 29.11.2017, he went to Venkteshwar Hospital and collected MLC no. 372/17 of injured Deepti Kalia vide DD no. 18A. Victim State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.8 of 13 refused to give her statement on that day and stated that she would give her statement at the PS. On 03.12.2017 statement of injured was recorded at her house and tehrir was prepared. Further investigation was transferred to SI Vijay Pal.
During cross examination, he stated that he reached the hospital at 1 PM and found that complainant was conscious. He denied the suggestion that delay in registration of FIR was because no incident as alleged had occurred. He denied the suggestion that complainant had given a false statement to falsely implicate the accused.
(vii) PW7 SI Durgesh Kumar has deposed that after investigation was marked to him, supplementary statement of victim Dipti was recorded by him. Notice under Section 133 MV Act was served on the registered owner of the cab. Accused was arrested and further investigation was conducted. Accused had refused to get his TIP conducted. Charge sheet was filed after completion of investigation. Both vehicles were correctly identified by the witness from their photographs. Accused was also identified by the witness.
During cross examination, he denied the suggestion that reply to notice under Section 133 MV Act Ex.PW-7/A and Ex.PW-7/B was prepared by the registered owner of offending vehicle. He denied the suggestion that accused was falsely implicated at the behest of complainant.
State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.9 of 13
9. To prove the allegations beyond reasonable doubt against the accused, prosecution was required to prove:
(i) Whether accused Krishan was driving car No. DL 9CAG 0427 on the day of incident.
(ii) Whether accident was caused due to the rash and negligent driving of accused.
The words 'rash' and 'negligent' have not been defined in IPC but there are numerous precedents wherein their meaning and import has been clarified.
It has been observed in several cases that 'criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused'. Thus, to incur criminal liability, act must be done with rashness or indifference as to the consequences. Criminal negligence is gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing injury to the public or individual. 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 man would consider to be sufficient.
State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.10 of 13
10. In the present case, the evidence of prosecution rests on the testimony of injured/complainant PW2/Deepti Kalia and eye-witness PW4 Sunil Sharma, along with other witnesses.
(i) PW2 Deepti had stated that the offending car had come at high speed and collided with the cab in which she was sitting. She had also stated that she had sustained injuries due to the said collision. However, during her deposition in Court, injured could not recall the number of the vehicle which had caused the accident in question. She also could not identify the driver of Swift Dzire car (offending vehicle) stating lapse of 5 years. Infact, it is interesting to note that victim could not identify the Uber driver in whose cab she was sitting soon after the incident, when she had gone to the police station.
On being cross examined by Ld. APP for State, she categorically denied that accused was driving the offending car at the time of incident. She also could not state if accident had occurred due to rash and negligent driving of accused, which is diametrically opposite to her initial statement to police. She also denied that she had visited the spot of accident and IO had prepared the site plan at her instance. She also admitted that complete registration number of offending vehicle was not recorded in the complaint given by her and same was added subsequently.
Since the injured has completely resiled from her State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.11 of 13 previous statements, grave suspicion has been cast on prosecution version as to whether the car in question was being driven by the accused rashly and negligently. It is further doubtful as to whether injured had sustained injuries in the accident occasioned due to rash driving of accused.
(ii) PW1 Satyawan is the owner of the Uber cab in which the victim was traveling at the time of incident. During his cross examination, it has come on record that the Uber cab was not damaged in the accident. Complainant, had however, initially stated that accused was driving his car very rashly and had collided with the Uber cab at high speed. In such a scenario, it was improbable that the cab will not show any signs of damage. The mechanical inspection report also corroborates the version of PW Satyawan in as much as only a few scratches have been found on the vehicle. These facts are also evident from the testimony of PW Chander Prakash/mechanical inspector and PW4 Sunil Sharma/driver of victim's cab.
11. In view of the above discussion, it is clear that criminal rashness or negligence while driving the car cannot be attributed to the accused beyond reasonable doubt. Accordingly, it is difficult to prove beyond reasonable doubt that the accident took place due to negligent driving of the accused or even that he State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.12 of 13 was driving the vehicle at the relevant time and date. Thus, the prosecution has failed to substantiate the charge U/s 279 IPC against the accused and in the event of such failure, charge U/s 338 IPC against accused also remains unsubstantiated.
12. Considering the aforesaid facts and circumstances, accused Krishan is entitled to benefit of doubt and is therefore acquitted for the offences punishable under Section 279/338 IPC. Digitally signed by Samiksha Pronounced in open Court Samiksha Gupta on 20th of March, 2024 Gupta Date:
2024.03.20 16:19:28 -0200 SAMIKSHA GUPTA Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi 20.03.2024 State vs Krishan FIR No. 351/2017; PS Sector 23 Dwarka Page No.13 of 13