Delhi District Court
State vs Vijender Kumar on 17 January, 2012
IN THE COURT OF SH. TARUN YOGESH, METROPOLITAN
MAGISTRATE 01, SOUTH WEST , DWARKA COURTS, DELHI
State v/s Vijender Kumar
FIR No: 389/99
PS: Delhi Cantt.
U/s: 279/337/338 IPC
JUDGMENT
1. S. No. of the Case : 634/08
2. Date of Commission of Offence : 25.8.1999
3. Date of institution of the case : 4.9.2000
4. Name of the complainant : Rajesh Kumar
S/o Sh. Richpal Singh
R/o RZF 762/11E Raj
Nagar, Part II, Palam
Colonly, Gali No. 4, Delhi
5. Name of accused, parentage : Vijender Kumar
@ Boby S/o Sh.
Narender Kumar
R/o H6 Police Colony
Palam Airport, Mehram
Nagar, New Delhi
6. Offence complained or proved : u/s 279, 337 & 338 IPC
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Convicted u/s 279, 337
and 338 IPC
9. Date of Final Order : 17.1.2012
B RIEF REASONS FOR SUCH DECISION :
1. Accused Vijender Kumar s/o Sh. Narender Kumar is facing FIR No. 389/99 page 1/12 trial for offence(s) under Section 279, 337 and 338 IPC on the allegation that on 25/08/1999 at 11:45am he was driving TATA Sumo no. HR 38 1990 in a rash and negligent manner so as to endanger human life and personal safety of others and while such rash and negligent driving, he struck against Bajaj Chetak scooter bearing no. DL 3SJ 2320 resulting in accident and consequent simple injury upon the person of Sh. Hari Dutt Sharma and grievous injury upon the person of Sh. Rajesh Kumar and thereby committed the above said offence.
2. After registration of FIR at police station Delhi Cantt., on 25/08/1999 at about 15:05 hours vide DD No. 25A, usual investigation was carried out by police and charge sheet was prepared and filed in the Court by IO on 04/09/2000. Cognizance of the offence was taken by my Ld. Predecessor MM on the same day and after compliance of Section 207 Cr.PC, formal notice of offences u/s 279, 337 and 338 IPC was duly framed and explained to accused Virender Kumar on 10/04/2002, to which he pleaded not guilty and claimed trial.
3. Prosecution story in brief is that on 25/08/1999 HC Ram Niwas alongwith Ct. Virender reached at the spot, Palam Mode upon receipt of information vide DD No. 20A. Upon reaching the spot, he found Bajaj Scooter in accidental condition and leaving behind Ct. Virender at the spot he went to Safdarjung Hospital and obtained MLC No. 127784/99 of injured Rajesh and MLC No. 127792/99 of injured Haridutt Sharma. IO recorded statement of injured Rajesh Kumar and after preparing tehrir got FIR registered at PS Delhi Cantt u/s 279 and 337 IPC. During investigation IO prepared site plan and seized the scooter involved in the FIR No. 389/99 page 2/12 accident. He recorded statements under Section 161 CrPC and arrested accused Vijender Kumar and seized the offending TATA SUMO vehicle. Both TATA Sumo vehicle and scooter were got mechanically inspected and after obtaining final result upon MLC, wherein injury upon the person of injured Rajesh Kumar was opined to be grievous, he prepared chargesheet for offences u/s 279, 337 and 338 IPC which was filed in Court and accused Vijender Kumar was sent for trial.
4. To substantiate its allegations against accused Vijender Kumar and prove his guilt for offences u/s 279, 337 and 338 IPC, prosecution has summoned and examined following witnesses:
5. PW1 injured Rajesh Kumar has deposed that on 25/08/1999 he was going to deposit form in St. Mary School, Delhi Cantt and on the way he met Hari Dutt Sharma and took lift on his scooter bearing no. DL 3SJ 2320. Upon reaching near crossing, Palam Mode, Tpoint, a TATA Sumo bearing no. HR 38 1990, white colour, being driven by accused rashly and negligently hit the scooter on the left side resulting in their felling down and sustaining injuries. Accused fled from the spot and after sometime PCR Van took him to Safdarjung hospital where he was medically examined. PW1 deposed that the accident took place at about 11:45am and he had seen the accused. He further deposed that accused was arrested in his presence upon his identification on 12/10/1999 and identified accused Vijender Kumar in the Court. PW1 has referred to his complaint/ statement as Ex.PW1/A and personal search memo of accused as Ex.PW1/B, both bearing his signatures at pt. A and has been discharged without being cross examined by accused. FIR No. 389/99 page 3/12
6. PW2 Ct. Virender Singh is a formal witness who deposed to have reached the spot of accident alongwith IO HC Ram Niwas on 25/08/1999 upon DD No. 20A. He deposed to have seen scooter no. DL 3SJ 2320 in accidental condition and that no eye witness could be found. He further deposed to have taken the rukka prepared by IO to PS for registration of FIR and has referred to the seizure memo of scooter as Ex.PW2/A, bearing his signatures at pt. A. He too has been discharged without being cross examined by accused despite opportunity given.
7. PW4 ASI Geeta Rani, PW5 Ct. Omprakash and PW6 ASI Raj Singh are formal witnesses. PW4 ASI Geeta Rani has deposed of being posted as Duty Officer at PS Delhi Cantt on 25/08/1999 and to have registered FIR no. 389/99 upon rukka brought by Ct. Virender, sent by HC Ram Niwas. She has referred to the copy of the FIR placed on record as Ex.PW3/E and her endorsement upon rukka as Ex.PW4/A. Similarly PW5 Ct. Omprakash has deposed of being posted as DD writer at PS Delhi Cantt on 25/08/1999 from 8:00 am to 4:00 pm. He deposed to have received information regarding injured Hari Dutt Sharma and Rajesh being admitted at Safdarjung Hospital through Duty Constable Mahesh telephonically at about 12:30 pm. Similarly PW6 ASI Raj Singh has deposed of being posted at PCR on 25/08/1999 and assigned duty at Zebra 37 from 8:00am to 8:00pm. He deposed to have reached the spot of accident Palam Mode, Thimayya Marg upon information and met both injured alongwith the Bajaj Chetak Scooter and to have taken the injured to Safdarjung Hospital. All three witnesses have been discharged without being cross examined by accused despite opportunity. FIR No. 389/99 page 4/12
8. PW7 Sh. Satish Sehrawat, owner of offending TATA Sumo Vehicle bearing no. HR 38DT 1990 has deposed to have received notice u/s 133 M.V.Act on 12/10/1999 and to have replied the same, reply being referred as Ex.PW3/J bearing his signatures at pt. B. He further deposed to have visited the police station alongwith accused Vijender and offending vehicle and told the IO that accused Vijender Kumar was driving his vehicle TATA Sumo bearing no. HR 38DT 1990 on 25/08/1999, being employed as his driver. He has referred to the seizure memo of his vehicle as Ex.PW3/K, seizure memo of DL of accused as Ex.PW3/M and the superidgnama upon which his vehicle was released as Ex.PW3/O, all bearing his signatures at pt. A. He too have been discharged without being cross examined by the accused despite opportunity.
9. Prosecution has examined Dr. P. Rama Krishna in place of Dr. Lovely Kaushal and Dr. R.P.Arora in place of Dr. Manjit Singh as PWs 8 and 9. Both doctors have deposed that Dr. Lovely Kaushal and Dr. Manjit Singh are no more working at the hospital. PW8 deposed to have been authorised by Dr. B.B.Thukral, HOD, Xray department vide authorisation Ex.PW8/A and has identified the Xray report bearing plate no. 5346 of patient Rajesh Kumar and Xray report bearing plate no. 5345 of patient Hari Dutt Sharma as Ex.PW8/B and Ex. PW8/C, bearing the signatures of Dr. Lovely Kaushal at pt. B. He deposed that upon examination of injured Rajesh Kumar, attending Dr. Lovely Kaushal had opined fracture in left femur, left pattela, tibia and fibulla of left leg of injured. Similarly PW9 Dr. R.P.Arora deposed to have been authorised by Dr. N.K.Mohanty, Urology Department vide authorisation letter Ex.PW9/A. FIR No. 389/99 page 5/12 He has identified MLC No. 127804 of patient Rajesh Kumar examined by Dr. Manjit Singh and referred to MLC as Ex.PW9/B bearing the signatures of Dr. Manjit Singh at pt. A who had opined the injuries to be grievous caused by blunt object. Both doctors have been discharged without having been cross examined by accused despite opportunity.
10. IO HC Ram Niwas has been examined as PW3 and he has deposed about the investigation conducted by him since information of accident upon receipt of DD No. 20A on 25/08/1999. He has referred to DD No. 20A as Ex.PW3/A, statement of injured Rajesh as Ex.PW1/A, his application for recording statement of injured as Ex.PW3/B and Ex.PW3/C, rukka as Ex.PW3/D, seizure memo of scooter and helmet as Ex.PW2/A, copy of FIR as Ex.PW3/E and copy of DD No. 30B as Ex.PW3/F. He has deposed to have got scooter inspected upon his application Ex.PW3/G. Site plan prepared on 10/10/2000 has been referred as Ex.PW2/H and scooter involved in the accident was released on superidgnama on 27/08/1999 vide Ex.PW3/H. Notice to registered owner has been proved as Ex.PW3/I and reply as Ex.PW3/J. Accused Vijender Kumar was produced before him by registered owner Sh. Satish Sehrawat and he seized the TATA Sumo vehicle vide memo Ex.PW3/K and interrogated and arrested accused vide memo Ex.PW3/L. IO further deposed that injured Rajesh had come to Police Station and identified accused Vijender as driver of the offending vehicle. He has referred to the seizure memo of DL as Ex.PW3/M, application for mechanical inspection of TATA Sumo as Ex.PW3/N and report of mechanical inspector has mark B. He too has been discharged without having been cross examined by accused despite opportunity.
FIR No. 389/99 page 6/12
11. After closure of prosecution evidence, accused Vijender Kumar has been examined without oath under section 281/313(b) CrPC on 20/12/2011 and he denied the allegations against him as incorrect and claimed himself to be innocent. He averred that he was not negligent while driving, rather upon reaching near Palam crossing, the scooterist jumped red light while he was crossing as traffic light from his side was green and the scooterist barged into his vehicle and got injured and he himself was neither rash or negligent, nor, accident was caused due to his fault.
12. Since accused declined to lead any evidence in defence, so matter was listed for final arguments on 11/01/2012. On 11/01/2012 accused stated that his counsel was not available and upon his request matter was adjourned till 16/01/2012 for final arguments. Accused failed to ensure presence of his counsel even on 16/01/2012 and hence matter has been reserved for judgment as from the record it is revealed that accused did not engage any counsel to defend him, nor has moved any application before the Court or before ld. Secretary, DLSA seeking legal assistance for his defence.
13. Final arguments has been addressed by the Ld. APP for the state who submits that prosecution has proved its case on record against accused Vijender Kumar beyond reasonable doubt as accused Vijender Kumar has not disputed being driver of the alleged TATA Sumo Vehicle on the date of accident and has not led any evidence in defence to prove his contention that he was driving his vehicle carefully and the scooterist infact FIR No. 389/99 page 7/12 had jumped red light and barged into his vehicle and got injured.
14. It is the cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence and prosecution is supposed to stand on its own legs and cannot derive benefits whatsoever from the weakness, if any, in the defence of accused. Further the burden of proof of the version of prosecution in criminal trial, throughout trial lies upon the prosecution and it never shifts to the accused who is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt entitles him to acquittal.
15. Before adverting myself to appreciation of evidence led by prosecution for deciding the present case, it would be prudent to discuss the penal provisions involved in the case for arriving at just decision. The penal provisions are reproduced in verbatim as follows. Section 279 IPC defines and provides punishment for rash driving or riding on public way, whereas section 337 and 338 IPC defines and provides punishment for causing hurt and grievous hurt by act endangering life and personal safety of others.
Section 279 IPC: 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 term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
FIR No. 389/99 page 8/12
Section 337 IPC. Causing hurt by act endangering life or personal safety of others Whoever, causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Section 338 IPC Causing grievous hurt by act endangering life or personal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
16. Thus, the essential ingredients for convicting accused Vijender Kumar in this case for offences u/s 279, 337 and 338 IPC are (1) prosecution has to prove that on 25/08/1999 at about 11:45 am, he was driving TATA Sumo no. HR 38 1990 on public way in rash and negligent manner which was likely to endanger human life or likely to cause hurt or injury to other person, and (2) struck against scooter no. DL 3SJ 2320 resulting in injury upon the person of Hari Dutt Sharma and grievous injury upon the person of Rajesh Kumar.
17. As far as the identity of accused Vijender Kumar as the driver of the offending TATA Sumo on the fateful day is concerned, accused himself has not disputed the same. During his statement without oath FIR No. 389/99 page 9/12 recorded under section 313 Cr.PC, he claimed that scooterist had jumped the red light and barged into his vehicle while he was crossing as there was green light from his side. Besides his admission upon statement recorded u/s 281/313 CrPC, complainant/ injured PW1 Rajesh Kumar has proved his complaint Ex.PW1/A and has identified accused before the Court besides deposing to have seen the accused at the spot and again on 12/10/1999 at PS when accused was arrested in his presence by the IO. Further PW7 Sh. Satish Sehrawat, registered owner of the vehicle has also identified accused Vijender Kumar before the Court deposing that on 25/08/1999, his TATA Sumo Vehicle HR 38DT 1990 was being driven by driver/accused Vijender Kumar. Thus the identity of accused as the driver of the offending vehicle stands proved beyond reasonable doubt.
18. The next requirement regarding injuries upon the person of complainant/injured Rajesh Kumar and scooterist Hari Dutt Sharma also stands proved as PW Dr. P. Rama Krishna has identified the report prepared by Dr. Lovely Kaushal as Ex.PW8/B and Ex.PW8/C and deposed about the fracture in the left leg of injured Rajesh Kumar. Similarly Dr. R.P.Arora has proved MLC prepared by Dr. Manjit Singh as Ex.PW9/A. Both doctors having proved the MLC and injuries upon the person of injured persons, the injuries upon injured/complainant Rajesh Kumar and Hari Dutt Sharma stands duly proved.
19. As far as the next requirement that on 25/08/1999 at about 11:45am accused Vijender Kumar was driving offending TATA Sumo vehicle on public way in rash and negligent manner which was likely to endanger human life or likely to cause hurt or injury to other person and FIR No. 389/99 page 10/12 while driving in aforesaid manner had caused injury to the injured persons is concerned, complainant Sh. Rajesh Kumar has identified him in the Court and categorically stated that injury had been caused as a result of accident caused due to rash and negligent driving by accused Vijender Kumar. Besides his deposition Ct. Virender Singh and IO HC Ram Niwas have proved the investigation conducted by IO after registration of FIR, pursuant to rukka prepared by HC Ram Niwas and sent to PS through Ct. Virender Singh. There has been no delay in registration of FIR as the offence was committed at 11:45am and FIR has been registered upon rukka at 3:05pm. Further PWs Ct. Omprakash and ASI Raj Singh have deposed about the information received at PS regarding accident and admission of both injured persons at hospital. Complainant Sh. Rajesh Kumar having proved his statement Ex.PW1/A wherein he has mentioned that accident had been caused as a result of rash and negligent driving by accused Vijender Kumar during his deposition recorded in the Court, the essential ingredient for convicting accused Vijender Kumar for offences under Section 279, 337 and 338 IPC stands proved beyond reasonable doubt.
20. The contention of accused Vijender Kumar that accident was caused not as a result of his rash and negligent driving, but on account of the scooterist having jumped the red light and barged the scooter against his vehicle has not been proved by accused Vijender Kumar. Prosecution having proved its case against accused Vijender Kumar regarding his being rash and negligent in driving TATA Sumo resulting in accident causing injuries to the injured, the burden to prove his innocence as mentioned during his examination recorded U/s 281 CrPC has shifted FIR No. 389/99 page 11/12 upon accused Vijender Kumar who claimed that accident was caused due to scooterist jumping the red light and not due to his own rash driving. This burden as per section 106 of Indian Evidence Act, 1872, has not been discharged by him. Accused having not examined himself or his witness to prove his contention about scooterist having jumped the red light and barged into his vehicle resulting in accident and consequent injuries as required U/s 106 of the Indian Evidence Act, 1872, being fact especially within his knowledge, prosecution has successfully proved its case on judicial record against accused Vijender Kumar who has been proved guilty of driving TATA Sumo Vehicle in a rash and negligent manner on public way on 25/08/1999, causing accident and consequent injuries to the injured persons. Accused Vijender Kumar is accordingly convicted for the offence U/s 279, 337 and 338 IPC. Put up for arguments and order on point of sentence on 23.1.2012 at 2 pm. ANNOUNCED IN THE OPEN COURT DATED: 17th JANUARY 2012 (TARUN YOGESH) METROPOLITAN MAGISTRATE 01 DWARKA COURTS : DELHI FIR No. 389/99 page 12/12