Delhi District Court
State vs Ashutosh Mishra on 27 August, 2024
IN THE COURT OF Ms. TARUNPREET KAUR,
JUDICIAL MAGISTRATE FIRST CLASS-07, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS
FIR No. 157/2012
Police Station: Vasant Vihar
Under Section: 279/337/338 IPC
State Vs. Ashutosh Mishra
Case No. 46779/2016
Name and details of the Sh. Ravi Thapak, S/o Sh. Kalyan
complainant
Thapak, R/o H.No. A-30, South
Anarkali Extension, Gali No. 9,
near Baldev Park, Jagat Puri,
New Delhi
Name and details of the accused Ashutosh Mishra, S/o Sh. Kuber
Nath Mishra, R/o A-307, Oxy
Home, Bhopura Road,
Ghaziabad, UP
Offence complained of Under Section 279/337/338 IPC
Plea of the accused Pleaded not guilty for offence
under section 337/338 IPC and
pleaded guilty for offence under
section 279 IPC.
Final order Acquittal for offence under
section 337/338 IPC and
conviction for offence under
section 279 IPC.
Date of Judgment 27.08.2024
State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 1 of 12
JUDGMENT
1. The case of the prosecution as based upon the complaint made by the complainant is that the complainant was working as a driver at the relevant time. On 23.05.2012 at around 09:00 am, the complainant was driving Tata Safari bearing registration no. DL 8C AD 0888 and was going from Ber Sarai to Saket Court. When the complainant reached Shaheed Jeet Singh Marg, in front of Qutub Hotel, a red coloured Maruti Swift car bearing registration no. DL 6CL 3049 came from front. The said car was being driven at a high speed, in a negligent manner and it came to the wrong side of the road and hit the vehicle driven by the complainant at its right side. Thereafter, the said offending vehicle hit an auto bearing registration no. DL 1 RK 5696 at its right side. Due to the said collision, the driver as well as the passenger in the auto sustained injuries.
1.1 The injured Maharaj Singh, who was sitting in the vehicle driven by the complainant and was the owner of the said vehicle, had also sustained injuries due to the aforesaid accident. Thereafter, relatives of the accused and Deepak Singh, i.e. son of injured Maharaj Singh reached the spot. A verbal altercation and scuffle took place between the accused State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 2 of 12 and said Deepak Singh. The accused bit Deepak Singh on his hand and in an endeavour of pacify the situation, wife of accused sustained nail marks on her hands.
2. The FIR was lodged against the accused and cognizance of offence in the present matter had been taken vide order dated 01.10.2012. Subsequently notice was served upon the accused for offences punishable under section 279/337/338 IPC to which he pleaded not guilty and claimed a trial.
3. As per the case of the prosecution, grievous injury had been caused to injured Sh. Rajesh (auto driver) and simple injury had been caused to Sh. Maharaj Singh and Deepak Singh. Vide order dated 01.09.2014, a statement as to voluntary compromise and compounding of offence under section 337 IPC was gotten recorded by injured Sh. Maharaj Singh. Vide order of the same date, accused had pleaded guilty for offence under section 279 IPC. Further, vide order dated 21.10.2016, a statement as to compounding of offence under section 337 IPC was gotten recorded by injured Sh. Deepak Singh.
4. Eight witnesses in all were examined from the prosecution.
State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 3 of 12
(i) PW-1 Sh. Ravi Thapak is the complainant and eye witness to the alleged incident. PW-2 Sh. Deepak Singh is one of the injured persons. PW-5 Sh. Ramesh Kumar Saxena is also an eye witness to the alleged incident.
(ii) PW-8 SI Shiv Kumar is the investigating officer in the present matter.
(iii) PW-3 W/ASI Manju, PW-6 SI Ashok Saini and PW-7 Ct.
Dharambir are the formal police witnesses.
(iv) Further, PW-4 Dr. Ankita Chowdhury proved the MLC of injured Sh. Maharaj Singh.
5. In his statement recorded under section 313 Cr.PC, the accused denied the entire incriminating evidence put to him and he stated that he has falsely been implicated in the present matter. He stated that he was not driving rashly or negligently.
6. The accused did not lead evidence in his defence and accordingly, defence evidence was closed.
State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 4 of 12
7. The record has been thoroughly and carefully perused. The submissions made by the Learned Assistant Public Prosecutor for the State (hereinafter referred to as "APP") and the Learned counsel for the accused have been heard and considered. During the final arguments, the Learned APP argued that the prosecution has been successful in proving the guilt of the accused and that he be convicted. On the other hand, the Learned Counsel for the accused persons argued that the present is a false case against the accused and that the prosecution has failed to prove their case qua the accused beyond reasonable doubt, hence, the accused deserves to be acquitted.
8. To bring home the guilt qua the accused for rash and negligent driving, three factors were required to be proved by the prosecution and that too, beyond any reasonable doubt. Those three essential factors/ingredients are as follows:-
(i) That the accident actually took place.
(ii) That the accident took place due to rash and negligent
driving.
(iii) That the accused was the person who was driving the
offending vehicle at the relevant time.
State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 5 of 12
9. Before proceeding further, let us discuss the meaning of expressions "rash" and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However, as per Black's Law Dictionary, Eighth Edition the word "Negligent" is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Further, the terminology of "criminal negligence" has been discussed by the Hon'ble Supreme Court in the landmark case of "S N Hussain vs State Of Andhra Pradesh", AIR 1972 SC 685 as under:
"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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted. 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."
State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 6 of 12 Appreciation of evidence and material available on record qua offence under section 279 IPC.
10. The statement of the accused (recorded on 01.09.2014) is on record wherein, the accused has voluntarily pleaded guilty for offence under section 279 IPC and has prayed for a lenient view. The aforesaid separate statement of the accused was recorded alongwith the statement of injured Sh. Maharaj Singh as to compounding of offence under section 337 IPC.
10.1 In such circumstances, the accused could not say that he had pleaded guilty for rash and negligent driving qua injured Maharaj Singh and not with respect to the other injured persons. Once his voluntary plea of guilt recorded for the said offence, it would necessarily result into conviction qua the said offence with respect to the entire alleged incident and all the injured persons.
10.2 Besides that, it is worth appreciating that the complainant Sh. Ravi Thapak, who was examined as PW-1, in consonance with his complaint Ex.PW1/A, deposed that the offending vehicle "came from the wrong side being driven in a rash and negligent manner hit my vehicle on the right side." Apart from that, he correctly deposed about the date, State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 7 of 12 time and spot of the alleged incident in addition to deposing about the other chain of events and other allegations against the accused. Also, he correctly identified the accused and the vehicles concerned (by way of photographs) before the court. Further, the accused had not cross-examined PW-1 and that makes his testimony unquestioned, admitted and unrebutted, by the accused.
10.3 Further, Sh. Ramesh Kumar Saxena, who was examined as PW-5, is one of the eye-witnesses and material witnesses in the present matter. He was commuting in the vehicle of the injured Sh. Maharaj Singh alongwith him. He deposed that the offending vehicle had come from the front side at speed of around 100/120 kmph and it had struck against their vehicle from the front side. He further deposed that the accused had struck his car against theirs by bringing his car to their part/side of the road i.e. by bringing it to the wrong side. He further deposed that the road was single. Thus, PW- 5 did not depose in precise words that the accused had been driving rash and negligently at the relevant time however, he did depose about the high speed at which the offending vehicle was being driven at the relevant time and that the accused had hit their vehicle by bringing his vehicle to the wrong side of the road. In this manner, PW-5 being a layman, sufficiently deposed that the accused had been State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 8 of 12 driving the offending vehicle at the relevant time in a rash and negligent manner. It is pertinent to note that testimony of PW-5 also stands unrebutted and unchallenged in view of the fact that the accused had failed to cross examine the aforesaid witness as his right to cross examine said witness had been closed vide order dated 10.07.2018.
10.4 In view of the above discussion, offence under section 279 IPC stands proved and established beyond reasonable doubt against the accused.
Appreciation of evidence and material available on record qua offence under section 337 IPC
11. As per notice served upon the accused, the accused had caused simple injury to injured persons namely, Sh. Maharaj Singh and Sh. Deepak Singh during the alleged incident and accordingly, offence under section 337 IPC was prima facie found to be made out against the accused.
11.1 The statements dated 01.09.2014 and 21.10.2016 of injured Sh. Maharaj Singh and Sh. Deepak Singh respectively, as to compounding of offence under section 337 State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 9 of 12 IPC are already on record. In view thereof, offence under section 337 IPC is not proved against the accused.
11.2 It is, however, pertinent to mention at this point that a defective notice had been served upon the accused as the same had been served for offence under section 337 IPC with respect to injured Deepak Singh, while the said injured was not a victim to the accident in question. As per the prosecution case, injured Deepak Singh was not even present at the spot when the alleged accident had taken place and he had arrived later on when the relatives of the accused had reached there. Further, as per the allegations leveled, victim Deepak Singh had sustained simple injury in view of the fact that accused had bit on his hand. Hence, charge under section 323 IPC should rather have been framed against the accused for the said set of allegations.
11.3 Nevertheless, it is also to be noted that Deepak Singh was examined as PW-2 prior to getting his statement as to compounding of offence recorded. In his testimony, he had not supported the prosecution version of the case and had deposed that he did not remember anything about the present matter, nor did he remember as to who had bitten him on the date of the alleged incident.
State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 10 of 12 11.4 In view thereof, no offence under section 337 IPC nor under section 323 IPC is proved against the accused.
Appreciation of evidence and material available on record qua offence under section 338 IPC
12. It has further been alleged by the prosecution that grievous injury had been caused to injured Rajesh by reason of the alleged accident. The injured/victim Rajesh was the driver of the TSR which had been hit by the offending vehicle subsequent to hitting of vehicle of injured Maharaj Singh. As per allegations levelled, injured Rajesh had suffered a leg fracture due to the alleged incident.
12.1 The injured Rajesh had been dropped from the list of prosecution witnesses vide order dated 03.02.2016 as processes issued to him, including process through DCP concerned, had been received back unserved.
12.2 Accordingly, offence under section 338 IPC also could not be proved by the prosecution against the accused.
State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 11 of 12
13. Therefore, in view of the above discussion, the prosecution succeeded in proving beyond reasonable doubt offence under section 279 IPC against the accused, however offence under section 337/338 IPC could not be proved.
14. Accordingly, the accused namely, Ashutosh Mishra s/o Sh.
Kuber Nath Mishra stands convicted for offence punishable under section 279 IPC and acquitted for offence punishable under section 337/338 IPC.
Announced in open court on 27.08.2024. Digitally signed by TARUNPREET TARUNPREET KAUR KAUR Date: 2024.08.27 15:35:50 +0530 (Tarunpreet Kaur) JMFC-07/New Delhi District PHC/N.D./27.08.2024 State Vs. Ashutosh Mishra FIR No. 157/12 Page No. 12 of 12