Delhi District Court
State vs . Vipin Desai on 22 July, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST
SAKET COURTS, NEW DELHI
FIR No. 828/2000
P.S. Defence Colony
U/s 279/337/338 IPC
State Vs. Vipin Desai
JUDGMENT :
a. Sl. No. of the case : 03/02
b. Date of Institution : 27.09.2001
c. Date of Commission of Offence : 06.11.2000
d. Name of the complainant : Raju Chauhan
S/o Late B.S. Chauhan
e. Name of the accused and his : Vipin Desai
parentage and address S/o Dhiru Bhai Desai
R/o 40/17, Kidwai Nagar,
New Delhi
f. Offence complained of : U/s 279/337/338 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 22.07.2013
i. Final Order : Acquitted
j. Date of such order : 22.07.2013
FIR NO. 828/2000 PAGE 1 OF PAGE 9
PS DEFENCE COLONY
1. The accused in this case was sent up for trial for the commission of offence u/s 279/337/338 IPC.
2. The facts in brief as per the prosecution story are that on 06.11.2000, the complainant namely Raju along with his friend namely Pramod were going to Green Park on their motorcycle bearing no. DNS0643. The said motorcycle was being driven by Pramod. At around 12.40 in the night, when they reached in front of Dharamshala, Aurobindo Marg, accused came in his Fiat car bearing no. DHE1648 while driving the same in a rash and negligent manner and at a high speed and hit against the motorcycle of complainant, due to which the complainant along with his friend fell down on the road and they both received injuries. They were removed to AIIMS hospital. Thereafter on the basis of statement of complainant, IO prepared the rukka and got the present case FIR registered in PS. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested. After completing other formal investigation the challan was presented before the court for trial u/s. 279/337/338 IPC against the accused.
3. The accused appeared in the court and he was informed of the substance of the allegation against him, vide notice dated 08.09.2003, under section 279/337/338 IPC to which accused pleaded not guilty and claimed trial.
FIR NO. 828/2000 PAGE 2 OF PAGE 9 PS DEFENCE COLONY
4. To prove its case the prosecution has examined eight witnesses namely Pramod as PW1, Raju Chauhan as PW2, Dr. Shalini Girdhar as PW3, Ct. Sunil as PW4, Dr. Ruchi Rastogi as PW5, Dr. Chittranjan Behra as PW6, HC Satish as PW7 and HC Shailesh as PW8.
5. PW1 Pramod has testified that on the night of 05/06.11.2000, he along with his friend Raju was going to Green Park, in his motorcycle bearing no. DNS0643. He was driving the same. At about 12.40 a.m., when they reached Green Park, Red light near one Ashram, one Fiat car bearing no. DHE1648 came at a fast speed from the side of Hauz Khas and hit his motorcycle from behind. PW1 further testified that they fell down and sustained injuries and he got fracture in his legs. PW1 further testified that the accused present in the court was driving the said Fiat car at the time of accident. The accident was caused due to the negligence of accused. PW1 further testified that he became unconscious at the spot after the accident and regained consciousness in the AIIMS hospital.
In his cross examination, PW1 has testified that he had consumed the liquor before driving the motorcycle.
6. PW2 Raju Chauhan has testified that on the night of 05/06.11.2000, he along with his friend Pramod was going towards AIIMS from the FIR NO. 828/2000 PAGE 3 OF PAGE 9 PS DEFENCE COLONY side of IIT on his motorcycle. Pramod as driving the said motorcycle. At about 12.30/12.45 a.m.(night) when they reached in front of Dharamshala, one Fiat car bearing no. DHE1648 came from behind at a very fast speed and hit their motorcycle as a result of which, they both fell down and sustained injuries. PW2 further testified that they could not identify the driver of the Fiat Car. Some public persons took them to the hospital. PW2 further testified that the accident had happened due to the negligence of the driver of the said Fiat car. Police came in the hospital and recorded his statement vide Ex. PW2/A. PW2 was cross examined by Ld. APP. In his cross examination, PW2 has testified that he could not say if the accused present in the court was the same person who was driving the offending car at the time of accident.
PW2 was cross examined by Ld. Defence Counsel also. In his cross examination, PW2 has testified that he and his friend had consumed liquor on that day prior to starting for their house on motorcycle.
7. PW3 Dr. Shalini Girdhar has testified that he had seen the MLC no. CS01953/00 pertaining to Parmod which was prepared by Dr. Rajiv Goyal, which is Ex. PW3/A. Accused did not prefer to cross examine PW3.
8. PW4 Ct. Sunil has testified that on 06.11.2000, he received a call FIR NO. 828/2000 PAGE 4 OF PAGE 9 PS DEFENCE COLONY regarding an accident and thereafter he along with HC Ram Kumar went to the spot at Aurobindo Marg, opposite to Dharamshala Yusuf Sarai market, where they saw one Fiat car bearing no. DHE1648 and motorcycle bearing no. DNS0643 lying in an accidental condition. PW4 further testified that leaving him at the spot, IO went to the hospital and after sometime, IO came back at the spot and handed over him rukka. PW4 further testified that IO came back at the spot with Raju. PW4 further testified that he went to the PS for registration of FIR and got the FIR registered and came back at the spot with copy of FIR and original rukka and handed over the same to the IO. PW4 further testified that IO seized both the vehicles vide memos Ex. PW4/A and 4/B. Thereafter the accused present in the court was arrested from the spot vide arrest memo Ex. PW4/C and his personal search was conducted vide memo Ex. PW4/D. DL of accused was also seized vide memo Ex. PW4/E. In his cross examination, PW4 has testified that the statement of the injured was not recorded in his presence.
9. PW5 Dr. Ruchi Rastogi has testified that reports of injured Pramod and Raju were prepared by Dr. Ambika, which are Ex. PW5/A and B respectively.
Accused did not prefer to cross examine PW5.
10. PW6 Dr. Chittranjan Behra has testified that the MLC of the FIR NO. 828/2000 PAGE 5 OF PAGE 9 PS DEFENCE COLONY injured Raju was prepared by Dr. Ranjan Joshi which is Ex. PW6/A. Accused did not prefer to cross examine PW6 also.
11. PW7 HC Satish has testified that on 06.11.2000, he recorded the DD no.22 dated 06.11.2000 which is Ex. PW7/A. Ld. counsel for accused did not prefer to cross examine PW7.
12. PW8 HC Shailesh has testified that on 06.11.2000, on receipt of rukka through Ct. Sunil Kumar, he recorded the present case FIR which is Ex. PW8/A. Accused did not prefer to cross examine PW8.
13. After closing of prosecution evidence, statement of the accused was recorded U/s 313 r/w. 281 Cr.P.C. In his statement, accused has denied to have committed the offence and claimed to has been falsely implicated in this case. He further denied to lead any defence evidence.
14. I have heard the arguments of Ld. APP for the State as well as Ld. Counsel for the accused and have also perused the record.
15. The accused has been charged with the offence u/s 279, 337 and 338 of IPC. The combined reading of these sections would show that a FIR NO. 828/2000 PAGE 6 OF PAGE 9 PS DEFENCE COLONY rash or negligent act is one of the essential ingredients which is required to be proved by the prosecution to establish the charge. While section 279 IPC renders punishable an act of rash or negligent driving which is dangerous to human life or limb, the same act would attract punishment u/s 337/338 IPC if indeed it results into injury to some person.
16. The term negligence has been defined by the Supreme Court in Mahadev Prasad Kaushik vs. State of UP(2009)2 SCC (Cr) 834 as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. Besides, such negligence as would justify a verdict of conviction must be culpable or of gross degree and not the negligence founded on a mere error of judgment or defect of intelligence. Rashness can be summed up as an act which is reckless or is done in a manner which is dangerous to public life. The mere fact that an accident has taken place or some persons have received injuries will not lead to any presumption of rash or negligent act on the part of the accused but will have to be established like any other fact. The injury so caused is not the determining factor. In a case under sections 337/338 and 279, of the IPC, there must be a definite finding that the driving was rash or negligent which resulted in the injury of the victim. Accused cannot FIR NO. 828/2000 PAGE 7 OF PAGE 9 PS DEFENCE COLONY be held guilty unless it is explained in what manner the accused was rash or negligent.
17. To prove its case against the accused, the prosecution has examined two eye witnesses namely PW1/Pramod and PW2/ Raju Chauhan who suffered injury in the accident. In his testimony, PW1 has not specified the manner in which the offending vehicle was being driven. He has only stated that the offending vehicle was being driven by the accused in a rash and negligent manner and at a fast speed and hit against their motorcycle due to which they fell down and they got injured. In his testimony, PW1 has testified that he became unconscious at the spot after the accident and regained consciousness in the hospital.
18. PW2 Raju Chauhan on whose statement the FIR was lodged, has also not specified as to how the accused was rash or negligent. He has merely stated that the accused was driving the vehicle in a fast speed and in a rash and negligent manner without specifying as to what was the speed of the offending vehicle. In Jitender Singh Vs State (2012 (1) JCC 7), the High Court of Delhi acquitted the accused observing that the eye witness could not tell at what speed the accused was driving the vehicle and only stated that he was driving the vehicle in high speed. In a case under section 279/338 of IPC, rash or negligent is the material ingredient of the offence FIR NO. 828/2000 PAGE 8 OF PAGE 9 PS DEFENCE COLONY and the same has not been proved in the present case.
19. Further, in his testimony, PW2 has failed to identify the accused. He was cross examined by Ld. APP and in his cross examination, PW1 has stated that he could not say if the accused was the same person who was driving the offending car at the time of accident. PW1 further testified that he did not see the driver of the offending vehicle at the time of accident. Further in their cross examination, PW1 and PW2 both have testified that they both had consumed liquor before driving the vehicle.
20. In these circumstances, it cannot be said with certainity that the accused has caused the accident on account of rash and negligent act. It may be a mere error of judgment or defect of intelligence.
21. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Vipin Desai is acquitted for the offence punishable U/s. 279/337/338 IPC for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 22.07.2013 Metropolitan Magistrate
South East/New Delhi
FIR NO. 828/2000 PAGE 9 OF PAGE 9
PS DEFENCE COLONY
FIR No.828/2000
PS Defence Colony
u/s 279/337/338 IPC
22.07.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 279/337/338 IPC for which he stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/with one surety in the like amount. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/22.07.2013
FIR NO. 828/2000 PAGE 10 OF PAGE 9
PS DEFENCE COLONY