Delhi District Court
State vs . Vikas Bansal on 25 January, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. VIKAS BANSAL
FIR No. 205/09
PS: MOTI NAGAR
U/S: 279/338 IPC
Sr. no. of the case : 803/2/10
Unique Case ID no. : 02401R0408472010
Date of commission of offence : 04.09.2009
Date of institution of the case : 07.09.2010
Name of the complainant : Sh. Madan Lal
Name of accused and address : Vikas Bansal
s/o Sh. Ved Prakash
Bansal, r/o 10, Shivalik
Apartments, Saraswati
Vihar, Delhi-110034.
Offence complained of or proved : U/s 279/338 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment: 25.01.2016
Date of judgment : 25.01.2016
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BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, on 04.09.2009 at about 07.00 PM near Jakhira Flyover Bus Stop, Delhi, victim Smt. Poonam was crossing the road from divider in the middle of the road towards Jakhira Chara Mandi side. While the victim was crossing the road, accused came driving his Wagon-R car bearing registration no. DL-9CM-0611 in a rash and negligent manner and thereby hit victim Poonam. Due to the said accident victim Poonam sustained grievous injuries. Accordingly, after the investigation, police filed the present charge sheet against the accused.FIR No. 205/09, PS Moti Nagar Page 1/11
2. Complete set of copies were supplied to the accused. After hearing arguments, notice U/s 251 Cr.P.C. was served upon the accused for trial of offence U/s 279/338 IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses.
4. PW1 Smt. Poonam stated that on 04.09.2009 around 07:00 PM, she was going towards Zakhira Flyover for boarding a bus. It is stated that while she was crossing the road from Inderlok side to Zakhira Chara Mandi Side, suddenly accused came driving a Wagon R car of silver colour from Anand Parbat side and struck against her. It is further stated that the accused was driving the offending car at a very fast speed in a rash and negligent manner. Due to the impact of accident she fell over the bonnet of the car and thereafter, the car of the accused dragged her to some distance, thereafter she fell down on the road. It is stated that thereafter, she lost her consciousness and when she regained her consciousness she found herself admitted in Maharaja Agrasen Hospital. It is stated that due to the said accident she received injuries all over her body. It is stated that her left leg got fractured and she also received injuries on her head, over her ears and eyes. It is further stated that she remained in hospital for about 11 days and was operated upon her left leg and brain. This witness correctly identified the accused. In her cross-examination, it is stated by her that at the time of accident she was on the road after leaving the middle divider. It is also accepted by her that there were other persons standing on the divider at the time of accident. She could not tell if she had got any call or message on mobile phone while she was standing on the divider. It is accepted by her that mobile no.9350741187 belongs to her brother.
She could not tell if she had received any message from her brother or contents of the same. She denied the suggestion that she was talking FIR No. 205/09, PS Moti Nagar Page 2/11 on phone while crossing the road. It is stated by her that she had seen the accused in the hospital for the first time. She could not tell if the accused had taken her to the hospital. She denied the suggestion that she all of a sudden came in between the road from the divider and due to that some car struck her. She denied the suggestion that she was hit by some other car. She could not tell whether there was any zebra crossing on the road.
5. PW2 Retired ASI Devender Kumar exhibited Mechanical Inspection Report of the bus as Ex. PW-2/A.
6. PW3 Madan Lal stated that about one and a half years ago at about 09.00 PM, when he was coming from Dev Nagar and was standing at Zakhira Fly Over waiting for the bus, he saw that victim Poonam deboarded a bus and started crossing the road, suddenly one Maruti Car came and hit the victim. It is stated that the car was being driven by the accused. It is further stated that the car was at a very high speed. It is further stated that after accident an another car also hit the car of the accused. It is further stated by him that he called the Victim before the accident but she did not hear voice of this witness. It is stated that after the accident the victim became unconscious and he along with the accused took her to the hospital in the offending vehicle. It is stated that in the hospital injured was medically treated. Statement of this witness is Ex. PW3/A. He exhibited seizure memos as Ex. PW3/B, PW3/C, Ex. PW3/D and Ex. PW3/E. It is stated that the offending vehicle was seized by the police. It is stated that the accused was arrested vide arrest memo Ex. PW3/F and his personal search was conducted vide memo Ex. PW3/G. This witness correctly identified the accused. This witness also identified the offending vehicle. The photographs of the offending car is Ex. P1 to P3. In his crossing-examination, it is stated by him that he was standing on the side of the road and injured was crossing the road. It is stated that he called the injured to stop and not to cross the road as there was heavy flow of the traffic. It is stated by him that victim was crossing the road from zebra crossing. It is FIR No. 205/09, PS Moti Nagar Page 3/11 accepted by him that injured Poonam was crossing the road by running on the road. It is stated that he had seen the accused when the accused deboarded the offending vehicle. It is stated that the injured became unconscious after the accident. It is stated that injured had not seen the accused as prior to accident she had no occasion to look towards the offending vehicle and after accident she became unconscious. It is accepted by him that the accused was not driving at a fast speed or in a rash and negligent manner. It is stated by him that in fact injured Poonam herself started crossing the road in a rash manner.
7. PW4 HC Pawan was the Duty Officer and he exhibited copy of FIR as Ex.PW4/A (OSR) and endorsement on the rukka as Ex.PW4/B.
8. PW5 HC Harati Lal stated that on 05.09.2009 he was working as MHC(M) at PS Moti Nagar. It is stated that on that day ASI Krishan Kumar deposited one Wagon R Car bearing no. DL-9CM-0611 in the present case in accidental position. It is stated that the front glass was in broken condition, its bonnet was also damaged. It is further stated that he deposited the car in Malkhana and made entry to this effect in register No. 19 at Serial No. 2892. It is stated that on 09.09.2009, the said car was released on superdari in favour of Sh. Ved Prakash Bansal in compliance with the directions passed by Sh. Ashish Aggarwal the then Ld. MM. An entry to this effect was made in the corresponding column against entry at serial no. 2892. Copy of entry at serial no. 2892 is Ex. PW5/A showing deposit of case property at portion X and release of case property at portion X1.
9. PW6 SI Krishan Kumar stated that on 04.09.2009, on receiving DD no.34A regarding admission of one injured at Maharaja Agrasen Hospital, who sustained injury in an accident at Jakhira Flyover, he alongwith Ct. Anil Kumar went to Maharaja Agrasen Hospital and collected the MLC No.011/09 of injured Poonam. It is stated that victim was unfit for statement at that time. It is further stated that he searched the eye witnesses at the hospital and one person namely Madan Lal met him in the hospital, who claimed himself to be an eye witness, who produced the accused and stated that the accused was driving the car FIR No. 205/09, PS Moti Nagar Page 4/11 and caused the accident. It is stated that he recorded the statement of Madan Lal Ex.PW3/A. It is further stated that he prepared the rukka Ex.PW6/A and handed over the same to Ct. Anil Kumar for registration of FIR. It is stated that Ct. Anil Kumar went to the police station alongwith copy of rukka from the hospital and he asked him to reach at the spot after registration of FIR. It is further stated that he alongwith the accused, eye witness Madan Lal came at the spot i.e. Jakhira Flyover and prepared the site plan at the instance of Madan Lal, which is Ex.PW6/B. The offending vehicle i.e. Wagon-R Car bearing no. DL-9CM-0611 was taken into possession vide seizure memo Ex.PW3/B. It is stated that the driving licence, RC of the accused and insurance of the vehicle were taken into possession vide seizure memos Ex.PW3/C, Ex.PW3/D and Ex.PW3/E. It is further stated that the accused was arrested vide arrest memo Ex.PW3/F and his (accused) personal search was conducted vide memo Ex.PW3/G. It is stated that after completion of proceedings on 05.09.2009, they returned to PS and case property was deposited in the Malkhana. It is further stated that on 09.09.2009, he had given notice U/s 133 MV Act to the owner of the offending vehicle namely Ved Prakash Bansal and he replied on the notice that his son i.e. the accused was driving the vehicle on the day of incident. The notice U/s 133 MV Act is Ex.X1. It is stated that on 08.10.2009, the injured was fit for making the statement and he recorded her statement U/s 161 Cr.P.C. The MLC of injured was collected on which the injury was opined as grievous. It is further stated that vehicle was released on superdari. After completion of the investigation, challan was prepared and filed accordingly. The witness identified the photographs of Wagon-R Car bearing no.DL-9CM-00611 of silver grey colour. The photographs are Ex.P1 to P3. This witness was cross-examined on behalf of the accused.
10. PW-7 HC Mewa Ram was working as Duty officer on 04.09.2009. It is stated that at about 08.05 PM, he had received an information from operator regarding admission of an unknown person in Agrasain Hospital, who had met with an accident at Jakhira Flyover in respect of FIR No. 205/09, PS Moti Nagar Page 5/11 which he made DD entry no. 34A which is Ex. PW7/A. It is stated that he had given copy of DD no. 34A to ASI Krishan Kumar.
11. The accused admitted the identity of Wagon R car bearing no. DL-9CM-0611 as well as signatures of his father who is the owner of the car on notice u/s 133 MV Act. He also admitted preparation of MLC bearing no. 011 dated 04.09.2009 (which is Ex.X1), however, deny its contents.
12. No other witness was left to be examined. Hence, PE was closed.
THE DEFENCE :
13. Statement of accused was recorded U/s 313 Cr.P.C, wherein he pleaded innocence and stated that he has been falsely implicated in the present case. It is stated by him that he had taken the injured to the hospital and police has not investigated the matter properly. The victim was talking on her mobile phone while crossing the road, in fact the eye witness Mr. Madan Lal tried to stop her, regardless of that she came in between the flow of traffic. The victim was hit by a motorcycle which was going ahead of his car, after getting hit by the motorcycle the victim fell on the windscreen of his car. He had checked the mobile of the victim and handed over the same to the IO, in fact there was a message in the mobile of the victim sent by her brother requesting her to come soon. The motorcyclist ran away from the spot. Since, he had taken her to the hospital, hence he was falsely implicated in the present case.
THE ARGUMENTS:
14. Ld. APP for State has argued that the victim and eye witness have supported the prosecution and their testimonies have remained unrebutted. That on a combined reading of testimony of prosecution witnesses, offence U/s 279 and 338 IPC are proved beyond doubt.
15. On the other hand, Ld. counsel for accused has stated that there is no legally sustainable evidence against the accused. It is argued that FIR No. 205/09, PS Moti Nagar Page 6/11 the victim was at fault as she was crossing the road at a place where there was no zebra crossing. It is argued that accused was not driving in rash or negligent manner. It is stated that victim suddenly came in the heavy flow of the traffic from the divider. It is argued that testimony of PW1 is not explaining whether the accused was driving in rash or negligent manner as PW1 has simply stated that accused was driving at a fast speed in a rash and negligent manner not properly describing the actual manner of driving. It is argued that there is no incriminating evidence against the accused.
THE FINDINGS:
Offence U/s 279 and 338 IPC:
16. Arguments adduced by Ld. APP and Defence Counsel have been heard and evidence and documents on record are carefully perused.
17. The prosecution in this case had to prove the following :
1. Firstly, the identity of the accused as driver of the offending vehicle; AND
2. Secondly, the accident has taken place due to rash and negligent driving by the accused, causing grievous hurt to the victim namely Poonam.
18. In present case identity of the accused as driver of the alleged offending vehicle i.e. Wagon-R Car bearing no.DL-9CM-0611 is not disputed. Though it is stated by the accused that accident was caused due to fault on the part of the victim and in fact victim was first hit by a motorcycle and thereafter, she fell on the bonnet of his car. Thus, it has been proved beyond reasonable doubt that accused was driving the alleged offending car at the time of accident in question. Further the injuries suffered by victim have been duly proved by her MLC. From the MLC, it is very much clear that victim has suffered grievous injuries.
19. Thus the only fact required to be proved in the present case is whether the accused was driving the offending vehicle in rash and negligent manner.
FIR No. 205/09, PS Moti Nagar Page 7/1120. The victim PW1 Poonam has simply stated that the accused was driving the car at a fast speed and in a rash and negligent manner. This is the only incriminating statement against the accused. The victim (PW1) has not deposed anything in regard to the accident or manner in which the car was being driven by the accused except the above stated bald statement that car was being driven at a fast speed and in a rash and negligent manner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the accused especially when the area was a main road and the accident was taken place when there was heavy flow of traffic on the road.
21. It was observed by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows, "No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken.
PW-10, the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
22. In case titled as "Abdul Subhan vs State, NCT of Delhi" 2007 Cr.L.J 1089, Hon'ble High Court of Delhi had observed that, "In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is FIR No. 205/09, PS Moti Nagar Page 8/11 a presumption of innocence in favor of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitor".
23. The mere statement that the vehicle was in fast speed is not sufficient to hold that the vehicle in question i.e. the car was in fast speed. There is no evidence on record to show that the accused was driving the offending vehicle at a very high speed or in a rash and negligent manner. There are no photographs or skid marks to show that the car was being driven at a high speed. Further mere fact that the accused was driving the vehicle at high speed may not attract the provision of this Section and prosecution has to prove something more.
24. PW1 Poonam could not tell if there were zebra crossing at the spot of accident, though it is stated by PW3 Madan Lal that victim was crossing the road from zebra crossing, however, the zebra crossing has not been mentioned or shown in the site plan which was prepared by the IO. Thus it is not proved that victim was crossing the road from zebra crossing.
25. It is stated by PW3 Madan Lal, who is one of the eye witness of the accident in question, that while injured started crossing the road, he called her to stop and not to cross the road as there was heavy flow of traffic. It is also stated by him that accused was not driving at a fast speed or in a rash and negligent manner. In fact it is stated by him that injured Poonam herself started crossing the road in a rash manner.
26. In such circumstances where it has not been proved that the victim was crossing the road from zebra crossing, further she suddenly started crossing the road by running on the road in between the heavy traffic, apparently, the victim was crossing the road with heavy vehicular traffic from the middle, thus, she was negligent. This is a contributory negligence on the part of the victim. Thus, in view of the circumstances of the present case, it cannot be held that the accused was grossly FIR No. 205/09, PS Moti Nagar Page 9/11 negligent or reckless that he must be held criminally liable.
27. The essential ingredients to constitute an offence punishable under Section 279 Indian Penal Code are that there must be rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person. For an offence under Section 338, the act of accused must be rash and negligent, which should be responsible for the injury to the victim. The prosecution in the present case has failed to prove how the act of the accused was rash or negligent to bring the same under the purview of Sections 279/338 Indian Penal Code.
28. At this stage it would be fruitful to remember that it is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence.
Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
29. In the case at hand, there are no photographs of the spot where the accident had taken place. The site plan prepared by the IO is merely a perfunctory one. It has not been shown in the site plan that whether victim was crossing the road at zebra crossing or not. The victim has made only a bald statement that the accused was driving at a fast speed in a rash and negligent manner, however, there is no evidence on record to prove that accused was driving at a fast speed as no skid marks have been shown in the site plan and no photographs of such FIR No. 205/09, PS Moti Nagar Page 10/11 skid marks were taken. The bald statement made by the victim PW1 in itself is not sufficient to prove the rashness and negligence on part of the accused. On the other hand, it has been categorically stated by PW3 Madan Lal in his cross-examination that accused was not driving in rash and negligent manner or at a fast speed. In fact he categorically stated that it was the victim who was at fault.
30. Thus, in the considered view of this Court, the prosecution could not prove beyond reasonable doubt that the accident has taken place due to rash or negligent driving by the accused. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, the accused Vikas Bansal S/o Sh. Ved Prakash Bansal is hereby acquitted from all the charges levelled against him in the present case.
31. Accused has furnished fresh bail/surety bond in terms of Section 437-A Cr.P.C. The same has been accepted.
32. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 25.01.2016 MM-04 (WEST)/DELHI
Containing 11 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 205/09, PS Moti Nagar Page 11/11