Delhi District Court
State vs Dinesh on 12 July, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 334/2012
PS Vijay Vihar
U/s 279/338 IPC
State Vs Dinesh
Date of Institution: 08.03.2013
Date of Judgment: 12.07.2018
JUDGMENT
(a) Serial Number of the case : 531549/2016
(b) Date of commission of offence : 02.09.2012
(c) Name of the complainant : SI Sanjeev
(d) Name of Accused, his : Dinesh Gupta,
parentage & residence S/o Vinod Gupta
R/o X23A, Budh Vihar,
Phase 1, Delhi.
(e) Offence complained of : Under Section 279/338 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final arguments heard on : 12.07.2018
(h) Final order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused Dinesh Gupta has been sent to trial for the offences under Section 279/338 IPC on the allegations that on 02.09.2012 at about 03:30 PM at shop no. U-42, Budh Vihar Phase I, New Delhi, he was driving vehicle bearing registration number DL1CG-7261 in a rash or negligent manner as to endanger human life and personal safety of others and that he hit the cycle being driven by child Swati and caused grievous injuries to her.
2. After completion of investigation, chargesheet was filed in the Court and cognizance of offences was taken whereafter the accused Dinesh was summoned. After he entered appearance, the accused was admitted to bail FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 1 of 16 and copy of the chargesheet alongwith the documents was supplied to him in compliance of the provisions of Section 207 of the Code of Criminal Procedure.
3. Notice was served upon the accused Dinesh Gupta for offences under section 279/338 IPC vide order dated 09.10.2013 by the Ld. Predecessor to which he pleaded not guilty and claimed trial.
4. To prove its case and discharge the initial burden of proof cast upon it, the prosecution examined 12 witnesses.
5. PW1 Mali Ram being one of the eye-witnesses testified that on 02.09.2012 at about 03:00 PM when he was returning to his shop after the lunch break, Swati, ie his neighbour's daughter, came at his shop for purchasing some grocery items and when he was opening the shutter of his shop at U-42, Budh Vihar, a green coloured Santro Car driven by the accused in a rash and negligent manner at a very high speed hit the girl and also the shutter of his shop. He further testified that he managed to jump away from the car and the the accused/driver fled from the spot leaving the car at the spot. He further testified that the girl Swati sustained injuries due to the accident. He correctly identified the accused in the Court.
6. He further testified that Ramesh Anand ie Uncle of the injured also came at the spot as he was present adjacent to the spot and who had also witnessed the accident. PW-1 further testified that he immediately called PCR at 100 number upon which police officials reached at the spot and the girl was shifted to hospital by her uncle. PW1 further testified that the IO prepared FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 2 of 16 the site plan at his instance and that the IO recorded his statement Ex.PW1/A on 04.09.2012 and though he admitted his signature thereon, he denied that the injured was coming on her bicyle when she was hit by the Car.
7. Since PW-1 was not supporting the case of the prosecution, he was cross examined by Ld. APP for the State, during which he denied having signed Ex.PW1/A after reading the same. He further denied that injured was coming on her bicycle from the side of Mangal Bazaar when the offending vehicle hit against her. He also denied that accused Dinesh was previously known to him as he used to reside in his neighbourhood or that he along with accused had shifted the injured to the hospital in the offending vehicle or that registration number of offending vehicle was DL1CJ-7261. PW1 correctly identified the offending vehicle i.e. Car Ex.P1. He was duly cross-examined by the Ld defence counsel.
8. PW-2 Sh. Ramesh Kumar being another eye-witness testified that one green coloured Santro Car bearing registration no. DL13G7261 was coming from Krishan Vihar side on 02.09.2012 at about 03:00 PM, and one girl Swati ie the daughter of his brother Rajpal was standing in front of the shop of PW1/Mali Ram for purchasing something. He further testified that as the shop was closed, Swati was calling Mali Ram to open the same. He further testified that the said Santro Car came at very high speed and rash manner and the driver of the car ie the accused herein hit the car against the shutter and the left leg of Swati got crushed between the shutter and the car whereafter the accused/driver of the car fled leaving his car there. PW2 further testified as to having taken Swati immediately at Braham Shakti Hospital, Budh Vihar along with his brother. PW2 also correctly identified FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 3 of 16 the accused in the Court.
9. PW-3 HC Lal Singh, being the Duty Officer testified as to having received one rukka sent by SI Sanjeev Kumar through Ct. Anand Prakash on 02.09.2012 on the basis of which he got FIR No. 334/12 i.e. Ex.PW3/A registered, made endorsement Ex.PW3/B on the tehrir and identified his signature thereon. This witness was not cross examined despite opportunity.
10. PW Anand Prakash was also inadvertently examined as PW3, testified as to being present at the spot on 02.09.2012, when one green coloured Santro Car bearing registration number DL1CG7261 came from Agrasen Market at a high speed and hit the girl standing in front of the shop. He further testified that the car entered the shop after breaking the shutter with the girl getting entangled between the car and the shutter. He correctly identified the accused as being the driver of Santro Car and further testified that the accident occurred due to negligence of accused who was driving the car at a high speed and failed to control the vehicle. He was also duly cross-examined by the Ld defence counsel.
11. PW4 Ct. Anand Swaroop testified as to having gone to the spot on 02.09.2012 after DD No. 86 B was marked to him after which he handed over the same to the IO SI Sanjeev Kumar and then accompanied the IO to Maharaja Agrasen Hospital Punjabi Bagh where the IO gave him one Tehrir for registration of FIR upon which he got the FIR registered, returned to the spot and handed over copy of FIR and original Tehrir to the IO. He was duly cross examined on behalf of accused.
FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 4 of 16
12. PW5 Neeraj Shanker, being the registered owner testified as to having sold the vehicle in question to the accused on 01.08.2012, as to receiving notice U/S 133 of MV Act on 04.09.2012 and having replied to the same vide Ex.PW5/A. He was not cross examined by the accused despite opportunity.
13. PW6 Ct. Jal Singh testified as to having gone to the spot along with SI Sanjeev after receiving DD No. 53 B on 02.09.2012 where they found one Santro Car bearing no. DL1CG7261 and one cycle in accident condition; as to coming to know upon enquiry as to injured having been shifted to Hospital; as to IO having gone to hospital after leaving him at the spot; as to the IO having returned and seized the car and cycle vide Ex.PW6/A & Ex.PW6/B and he also identified his signatures thereon.
14. PW6 further testified as to having joined the investigation again on 04.09.2012 with the IO and having gone to house no. X23A, Budh Vihar where accused was arrested vide Ex.PW6/C, his personal search was conducted vide Ex.PW6/D and D.L. was seized vide Ex.PW6/E. He was duly cross examined by the Ld defence counsel.
15. PW7 K.D. Sharma, being record clerk from Maharaja Agrasen Hospital identified the signature of Dr. Ashok Kumar Gupta and Dr. Rahul Aggarwal on MLC no. 633/12 Ex.PW7/A in which nature of injuries was opined to be grievous. He was duly cross-examined by the Ld Defence counsel.
16. PW8 W/Ct. Manvinder being the DD writer testified as to having recorded the DD No. 53B on 02.09.2012, Ex.PW7/A. She was duly cross examined on behalf of the accused.
FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 5 of 16
17. PW9 Retired ASI/Tech. Devinder Kumar proved the mechanical inspection report Ex.PW9/A of the Santro Car bearing no. DL1CG7261 as per which the front bumper and body were damaged from left side, left side headlight and fender were damaged, bonnet was damaged from left side and steering left side ball joint rod broken with vehicle not being fit for the road test. He was also duly cross examined by the Ld defence counsel.
18. PW10 Dr. Sanjeev Sanghal proved the factum of grievous injuries having been caused to the injured Swati as he testified as to having examined injured Swati on 02.09.2012 along with Dr. Rahul and as to having found fracture in left femur and left tibia after investigation for which she was operated by PW10 and Dr. Rahul on 02.09.2012 and was discharged in satisfactory condition on 05.09.2012. He also proved the discharge summary Ex.PW10/A identifying the signature of Dr. Ashok thereon. He was duly cross-examined by the Ld defence counsel.
19. PW11 SI Sanjeev Kumar being the Investigating Officer testified as to hav- ing gone to the spot i.e. near Shop No. 42, Budh Vihar, Phase I, Delhi on 02.09.2012 with Ct Jai Singh upon receiving DD No. 53B regarding accident where a crowd was present and one Santro car bearing registration No. DL1CG 7261 and one small cycle were in accident condition. He further tes- tified that upon inquiry they came to know that the Santro car had hit against one child and the injured child was shifted to the hospital whereafter DD No. 86B Ex.PW11/C was received by him telephonically regarding admission of injured child in Maharaja Agrasen Hospital upon which he left Ct. Jal Singh at the spot and went to the Hospital. He further testified as to Ct. Anand also FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 6 of 16 having reached at the hospital with DD NO.53B & 86B. He further testified that in the hospital he collected the MLC of injured child Swati who was de- clared unfit for statement by the doctor and no eye witness was found in the hospital after which he returned to the spot with Ct. Anand.
20. PW11 further testified as to having prepared rukka Ex.PW11/A and getting the FIR registered through Ct. Anand who returned to the spot and handed over the copy of FIR and original rukka to PW11 after which PW11 seized the offending car No. DL1CG 7261 vide seizure memo Ex. PW6/A, small cycle was seized vide seizure memo Ex. PW6/B and the case property was deposited in the malkhana.
21. He further testified that on 04.09.2012, PW1 Mali Ram met him and narrated the incident to him and he recorded the statement of Mali Ram, Ex.PW1/A. He further testified as to having recorded the statement of another eye-wit- ness Ramesh Kumar and he also recorded the statement of Anand Prakash ie father of injured on 04.09.2012 on which day he also served the notice u/s 133 MV Act Ex.PW5/A upon the owner of the offending vehicle who told that he had already sold the offending vehicle to the accused Dinesh Gupta.
22. PW11 further testified as to having prepared the site plan Ex. PW11/B at the instance of witness Mali Ram and as to having arrested the accused vide Ex. PW6/C, as to having personally searched the accused vide Ex. PW6/D, as to seizing the RC of the offending vehicle and DL of the accused Dinesh vide Ex. PW6/E. PW11 further testified as to the doctors having opined the injuries on MLC of baby Swati as grievous and as to mechanical inspection of the offending vehicle being done in respect of which report Ex.PW9/A FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 7 of 16 was received. He further testified as to having recorded the statement of witness and filing the chargesheet after completion of investigation. He correctly identified the accused in the Court and also correctly identified his signatures on the documents. The accused did not dispute the identity of the case property Ex. P1. He was duly cross-examined by the Ld defence counsel.
23. After prosecution evidence was closed, the statement of accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to the accused who main- tained his innocence stating that he had been falsely implicated. The accused however chose not to lead any defence evidence.
24. Final arguments as advanced by Ld. APP for the State and Ld. Counsel for the accused have been carefully considered along with the evidence on record.
25. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. Accused is entitled to the benefit of every rea- sonable doubt in the prosecution version.
26. Since the accused Dinesh Gupta has been charged with having committed an offence under Section 279 of Indian Penal Code, 1860, it was for the State to prove that a) the accused was driving the Green coloured Santro Car bearing number DL 1CG 7261; b) he was driving the said vehicle on a public way; c) FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 8 of 16 he was driving the same in a rash and negligent manner; and d) the manner was such so as to endanger human life, or to be likely to cause hurt or injury to any other person.
27. To prove the offence under Section 338 of the Indian Penal Code, 1860, it was for the prosecution to prove that a) the accused caused grievous hurt to child Swati; and b) the same was caused by a rash and negligent act of the accused so as to endanger human life or the personal safety of others.
28. Hence, it was for the prosecution to prove
1. the factum of an accident having been caused by the offending vehicle;
2. the identity of the accused being the driver of the offending vehicle;
3. the accident to have been the result of the rash and negligent driving of the accused at a public place; and
4. grievous injuries to Swati to have resulted from such rash and negligent act of the accused.
Appreciation of evidence
29. To prove its case, it was imperative for the prosecution to prove the rashness and negligence on the part of the accused while he was driving the offending vehice at the time of the accident. It has to be borne in mind that a rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 9 of 16 in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution (Reference to judgment of Mohd. Aynuddin alias Miyam v. State of A.P. (2000) 7 SCC 72).
30. In the present case, the prosecution has relied upon the testimony of three eye-witnesses ie PW1 Mali Ram, PW2 Sh Ramesh Kumar and PW3 Anand Prakash to prove that the accident occurred due to rashness and negligence on the part of the accused. However, the testimony of these three witnesses is inconsistent and they have also not been able to withstand the rigours of cross-examination.
31. For instance, as per the testimony of PW1 Mali Ram, he was returning to his shop on 02.09.2012 after lunch break and was opening the shutter of his shop at about 3.00pm when the accident took place. However, during his cross- examination he testified that his shop was closed due to lunch hour and that he closed the shop from 1.30 pm to 4.00 pm. If his testimony during cross- examination is correct then it would imply that the shop was not to be opened till 4.00pm and hence it can be inferred that there no occasion for the PW1 to have been present to open the shop at 3.00 pm hereby raising suspicion as to the truthfulness from said testimony of PW1.
32. During the course of arguments, an explanation for the same was sought to be furnished on behalf of the State that the shop was being opened by PW1 as the injured/Swati was there to purchase some articles as PW2 Ramesh Kumar has testified that the injured Swati was calling Mali Ram to open his shop. However, the explanation as furnished is not corroborated from the record in as much as the PW1 has categorically testified during his FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 10 of 16 examination in chief that he was returning to his shop after lunch break when the child Swati came to purchase the grocery articles and it is not his testimony that he came to open the shop as he was being called by Swati. Also there is no corroborative evidence led by the prosecution as to whether the PW1 was returning to his shop after lunch break or he was opening the same as Swati had come there also which again raise suspicion as to the truthfulness of the version / testimony of the PW-1.
33. It is pertinent to note that during his cross-examination, PW1 Mali Ram has gone on to introduce another aspect when he testified that at the time of accident, he was standing in condolence meeting of Sh Satpal Garg near his shop. If that is true, then his testimony as to returning to the shop to open the same gets falsified. It is also pertinent to note that PW2 Ramesh has testified during his cross-examination that he was present at the spot as he was attending the condolence meeting of one Sh Bansal which meeting was about 20 feet from the shop of PW1 Mali Ram. Hence inconsistent evidence has come on record as to even whose condolence meeting was taking place.
34. The presence of the PW1 Mali Ram at the spot at the time of the accident has remained uncorroborated even from the site plan Ex.PW11/B in as much as as per the site plan the witness PW1 Mali Ram was standing at point 'D' i.e almost across the road when the accident took place, whereas in the examination in chief, he has categorically testified that the accident took place when he was opening the shutter of his shop. Since it is not possible for PW1 Mali Ram to have been present at two places at the same time, it was for the prosecution to explain the inconsistency which it failed to do and the same adversely affects the case of the prosecution.
FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 11 of 16
35. As per PW3 Anand Prakash, the accused was coming from Agrasen Market while driving the offending car whereas PW2 Ramesh has testified that the accused was coming from Krishna Vihar side. The testimony of PW1 Mali Ram is completely silent as to the direction from which the car was coming. The site plan Ex PW11/B does not show any place as Krishna Vihar or Agrasen Market. It also does not show any arrow to show the direction in which the accused was driving his car. That being so, sufficient evidence has not come on record to even prove the material fact, i.e., directions in which the car was traveling which also adversely affects the case of the prosecution.
36. It is also pertinent to note that the entire testimony of PW1 Mali Ram is silent as to the injured riding any bicycle at the time of accident and he even denied having stated in Ex PW1/A that the injured was coming on a bicycle when the offending car hit her. He even denied that the injured was coming on her bicycle from Mangal Bazaar side when the car hit her. Interestingly, the testimony of all three cited eye-witnesses is silent as to the injured being on any bicycle or even as to any bicycle being present or parked near the shop of PW1. The said omission is significant in as much as PW6 Ct Jal Singh and PW11 SI Sanjeev Kumar have both testified as to having found the green coloured Santro car DL 1CG 7261 and one small bicycle at the place of the accident and as to the cycle also having been seized vide Ex PW6/B. Despite the seizure, no further investigation has been done as to nature and extent of the damage to the cycle; as to whether the cycle belonged to the child/injured or even as to whether the damage was the result of the accident in question which constitutes a major defect for proving the case of the prosecution as even there presence of the bicycle at the spot has FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 12 of 16 remained unexplained.
37. It is also pertinent to note that despite PW1 Mali Ram, PW2 Ramesh Kumar and PW3 Anand Prakash having testified as to the accused driving his car in high speed, no further evidence has been led by the prosecution to prove the specific speed at which the alleged offending vehicle was being driven as the testimony of all these three witnesses in conspicuously silent as to the exact speed of the car DL 1G 7261 at the time of the alleged accident. They have also not testified anything to elaborate the meaning of the term 'high speed' which in itself is a relative term. PW2 Ramesh Kumar testified during his cross-examination that though the vehicle was being driven in high speed, he could not tell the exact speed of the car. It cannot be lost sight of that even if a vehicle is being driven at a high speed, the same in itself does not necessarily indicate either negligence or rashness on the part of the driver of the vehicle for 'high speed' is a relative term and it is for the prosecution to bring on record material to establish as to what it meant by high speed in the facts and circumstances of the case since in a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"
(Reference made to judgment of Hon'ble Apex Court that State of Karnataka v Satish (1991 (1) JCC SC 97).
38. Now, PW2 Ramesh has testified during his cross-examination that the speed of the vehicle was roughly 30-40km/hr. However the prosecution failed to FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 13 of 16 prove what was the permissible speed limit at the place of accident at that time. In the absence of any specific evidence having been led by the prosecu- tion to prove permissible limit and the exact speed of the car of the accused as being high, presumption as to any rashness or negligence on the part of the accused does not arise and it was for the prosecution to establish the same by cogent evidence which it has miserable failed to do.
39. It is also pertinent to note herein that the incident took place on 02.09.2012. As per testimony of PW11 SI Sanjeev Kumar, when they had reached at the spot, a crowd was gathered there. Despite the presence of the crowd, no statement any public person was recorded on the same day as even PW6 Ct Jal Singh has testified that despite them remaining at the spot till 4.00pm, no statement of any public person was recorded in his presence. It is pertinent to note that the statement of the PW1 Mali Ram was recorded only on 04.09.2012 and no explanation has come on record as to why his statement was not recorded on the same day. It does not appeal to reason that no in- quiry would have been conducted from the owner of the shop whose shutter was allegedly damaged in the accident. Admittedly, the PW1 Mali Ram knew the injured prior to the incident, where as PW2 Ramesh Kumar and PW3 Anand Prakash are the uncles of the injured. Hence the possibility of them being interested witnesses cannot be ruled out even more so as no indepen- dent witness was examined despite it having come on record in the testimony of PW2 Ramesh Kumar that 30-40 persons were present in the condolence meeting where he was also present. No explanation has come on record as to why no independent witness was examined by the investigating agency or the prosecution to corroborate the inconsistent testimony of the PW1 Mali Ram, PW2 Ramesh Chander and PW3 Anand Prakash. It is also noted that the FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 14 of 16 injured child has not been examined in this case. Despite the IO/PW11 SI Sanjeev having testified that injured was unfit for statement on 02.09.2012, no explanation has been furnished by the prosecution for not examining her thereafter. No explanation has come on record in the evidence as led to show prevented the IO from recording her statement after she was discharged from the hospital after her treatment. Hence the non-examination of any public witness also raises a suspicion against the truthfulness of the version of the prosecution.
40. Be that as it may, even the factum of the statement of the PW1 Mali Ram having been recorded on 04.09.2012 is also not corroborated by the PW1 Mali Ram himself in as much as during his cross-examination he has testified that his statement was recorded by the police on the next day of the accident. If that is true, then his statement should have been recorded on 03.09.2012 and not 04.09.2012 which inconsistency has also not been explained by the prosecution.
41. It is also not lost sight of that the contents of the therir/FIR support defence version as to child having turned her cycle upon which she was hit by the car of the accused. The same is contrary to the testimony of PW1 Mali Ram who has testified as to the injured being present in front of his shop when she was hit by the accused. The prosecution has also failed to explain the said contra- diction.
42. The testimony of the PW1 as to damage to his shutter has also remained un- corroborated by the testimony of all police witnesses in as much as neither PW6 Ct Jai Singh nor PW11 SI Sanjeev have testified as to any damage to FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 15 of 16 any shutter of the PW1 Mali Ram. It is noted that while during his cross-ex- amination, PW11 SI Sanjeev has testified that he had taken photographs of the shutter with which the car of the accused had collided and filed it in court, no such photographs were on judicial file. Hence, the testimony of the PW1 remains uncorroborated in this respect also.
43. Hence, the evidence as led by the prosecution is inconsistent and does not inspire confidence nor is it sufficient to prove the guilt of the accused beyond reasonable doubt.
Decision
44. In view of the aforesaid discussion, with the prosecution failing to prove through cogent, consistent credit-worthy evidence, any rashness or negligence attributable to the accused, the prosecution has failed to prove its case against the accused beyond reasonable doubts. Accordingly, accused Dinesh Gupta S/o Sh. Vinod Gupta is given the benefit of the doubt and is hereby acquitted of the offence under Section 279/338 IPC in FIR no. 334/12 PS Vijay Vihar.
45. The accused is directed to furnish bail bond and surety bond in the sum of Rs.25,000/- under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
46. File be consigned to Record Room after due compliance.
Announced in the open court POOJA Digitally signed by POOJA AGGARWAL on 12.07.2018 AGGARWAL Date: 2018.07.13 11:04:04 +0530 (POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 334/12 PS Vijay Vihar U/s. 279/338 IPC State vs. Dinesh page 16 of 16