Delhi District Court
State vs . Ajay Pandita on 29 November, 2018
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH WEST)
DWARKA COURTS, NEW DELHI
State Vs. Ajay Pandita
FIR No: 207/16
PS: Dwarka Sector-23
U/s: 279/338 IPC
Date of Institution of the case : 10.10.2017
Date from which the Judgment reserved : 16.11.2018
Date on which the Judgment pronounced: 29.11.2018
a) Serial No. of the case : 7568/17
b) Date of commission of offence : 29.06.2016
c) Name of complainant : Sh. Ankur Yadav
S/o Sh. G.K. Yadav
R/o C-64, Bhagwanti Garden
Extn. Dwarka Mor, New Delhi
d) Name of accused, his parentage : Ajay Pandita
S/o Late Sh. Somnath Pandita
R/o Flat No. 1030, Rajani
Gandha Appts, Plot No. 4,
Sector-10 Dwarka,
New Delhi
e) Offence complained of or proved : u/s 279/338 IPC
f) Plea of accused : Pleaded not guilty
g) Final Order : Convicted
h) Date of such Order : 29.11.2018
FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 1 of 14
JUDGMENT
1. The accused has been charge sheeted for committing offences punishable under Section 279/338, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). It has been alleged by the prosecution that on 29.06.2016 at about 08:30 am at red light, Sector-10 & 19, Dwarka, New Delhi, accused was found driving vehicle (Honda City) bearing no. HR- 26BU-5201 in a manner so rash and negligent so as to endanger human life and personal safety of others and struck against vehicle (Wagon R Car) bearing registration no. DL-3CZ-7634 which caused grievous injuries on the person of one Ankur Yadav.
2. Complaint was made and FIR was registered. IO conducted the investigation. After completion of investigation, the present chargesheet was filed for offences punishable under Section 279/338 IPC. Cognizance of offence was taken and accused was summoned to face trial. The copies were supplied under Section 207 Cr.P.C.
3. After hearing the parties, notice u/s 279/338 IPC was served upon the accused to which he pleaded not guilty and claimed trial.
4. Prosecution Witnesses were summoned for evidence and three prosecution witnesses were examined to prove the case of the prosecution against the accused.
(i) PW-1 Sh. Ankur Yadav was the complainant. He deposed before the court that on 26.06.2016, he was coming from Gurgaon in his Wagon R bearing no. DL8C-7634. He again stated that it was 29.06.2016. It FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 2 of 14 was around 8 to 8:30 in the morning, when he reached near the red light at Welcome Hotel, the light became green and he was crossing the chowk.
One Honda City Car broke the red light and hit his car on the left side i.e. on the door of the passenger seat next to the driver seat. Due to the impact of the accident, his car turned turtle. He somehow got out of the car and saw the accused inside the Honda City Car who was trying to start the car. Public persons gathered and accused was taken out of the car. He called at 100 number. Thereafter, he was asked by officials to go to the hospital for treatment and he was assured that one constable would be left at the spot. On reaching the Artemis hospital, he was operated upon. On regaining consciousness, he gave his complaint Ex. PW1/A to police official SI Jagdish. He proved photographs of his car as Ex. P-1 (Colly.) and the photographs of the offending vehicle as Ex. P-2 (colly.).
Accused was correctly identified by the witness.
In his cross-examination, he stated that he is MBA in foreign trade. He was working as Project Coordinator in NTT Data. His working timing was from 10:30 pm to 07:30 am. At that time, he used to go to Gurgaon regularly for his job. He did not sleep during his night shift but were given proper breaks as per company policy. On that day, he left from his company office at 07:15 am. Accident happened at around 08:15 am. The distance between his company in Gurgaon and place of incident must be around 20 Kms approximately. He admitted that the place of incident was a red light and it was a cross road. There was a signal for regulating traffic at the cross roads for all lanes. He denied the suggestion that the traffic was very heavy at that time. He denied the suggestion that the accused was standing at the red light. He denied the suggestion that the accused started FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 3 of 14 his car on the light becoming green. At the time of incident the speed of his car would be around 40 KMPH. He denied the suggestion that he broke the red light and the accused tried to save him. He denied the suggestion that he was driving his car in high speed and that was why the car of the accused was damaged. He denied the suggestion that he broke the red light and due to the impact of the accident and high speed of his own car, his car hit the divider and turned turtle on its own. He could not tell that how many public persons were gathered at the spot. He had called the police. Police came at the spot within 10-15 minutes. There were 3-4 police officials all of whose name he did not remember. He went to the hospital in the PCR but one constable remained at the spot. No other statement was recorded in his presence. He could not confirm or estimate the amount of damage suffered by the car of the accused. He denied the suggestion that he broke the red light. He was not called to the PS by the police. His statement was not recorded in police station. His statement was recorded on the same day in the hospital as the date of incident.
(ii) PW-2 was Ct. Raj Pal. He deposed that on 29.06.2016, at around 8.15 am, he received a call regarding an accident at Dwarka Sector- 10 Chowk red light vide DD No. 9A. He alongwith the IO reached the spot of the accident. They saw two cars, a Wagon R and another car (he did not remember the description of the another car) in accidental position. (He did not remember the registration numbers also.) They were told that the injured had already been taken to the hospital. He remained at the spot and the IO left for the hospital. He returned to the spot and took both the vehicles and got them deposited in the malkhana. Accused himself told that the accident FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 4 of 14 had taken place with his vehicle. He proved arrest memo of accused as Ex. PW2/A, seizure memos of vehicles as Ex. PW2/B and Ex. PW2/C. He stated that no document was seized in his presence.
Accused was correctly identified by the witness.
In his cross examination, he stated that he alongwith IO left for the spot at around 8.15 am by motorcycle belonged to the IO. He did not remember the registration number of the motorcycle. They reached at the spot at 8.20 am. When they reached at the spot 5-6 people were gathered there. IO SI Jagdish did not interrogate any public person. The IO left for the hospital from the spot at 8.25 am. IO returned back to the spot at around 9.30 am. They remained at the spot around 10-15 minutes. He again stated that they remained at the spot approximately for one hour. He did not know that due to whose negligence the accident took place. IO took his statement at the PS. Accused was taken to PS in his own vehicle. He denied the suggestion that there was no negligence of accused. He denied the suggestion that he did not visit the spot. He denied the suggestion that all the proceedings were conducted at the PS.
(iii) PW-3 was SI Jagdish. He deposed that on 29.06.2016, on receiving DD No. 9A, he alongwith Ct. Raj Pal reached at the spot i.e. red light of Sector-10 & 19 where they found two vehicles in accidental condition. The Wagon R had toppled over and the other car Honda City was also standing there. They got to know that the injured had been admitted to ARTEMIS hospital. He left Ct. Raj Pal at the spot. He alongwith the accused Ajay Pandita who they found at the spot left for ARTEMIS hospital, Sector-20 Dwarka. At ARTEMIS hospital, he found the injured Ankur Yadav FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 5 of 14 admitted. After taking permission from the doctor, he interrogated the injured who identified the accused as the driver of Honda City car and thereafter, he recorded his statement Ex. PW1/A. Thereafter, he came back to the spot. He prepared the rukka Ex. PW3/A and got the case registered through Ct. Raj Pal. He proved site plan as Ex. PW3/B, seizure memo of vehicles as Ex. PW2/B and Ex. PW2/C, arrest memo of accused as Ex. PW2/A. He also served notice U/s 133 MV Act Ex PW3/C upon the accused. He seized the copy of RC, DL and insurance policy vide seizure memo Ex. PW3/D. He got the mechanical inspection of both the vehicles done. He obtained the final result on the MLC which was found to be grievous and thereafter, he added Section 338 IPC. He proved case property as Ex. P-1 and Ex. P-2. Thereafter, he filed the chargesheet in court.
In his cross-examination, he stated that he could not remember his exact duty timing on that day. He did not remember the exact time when he received the information, however, it was approximately 09:00 am. He left PS alongwith Ct. Raj Pal as soon as he received the call. They left on his own private bike. He reached the spot within 10 minutes. The distance was about 1 ½ km from the PS. He could not tell how many people were standing there. When he reached the spot only accused was present. He inquired regarding the accident from the public persons. He had not taken any statement of public person. He told the public persons to join the investigation but they refused as they were not the eye witness. He stayed at the spot for about 10 minutes. He admitted that no public person was ready to join the investigation. Case was registered on the basis of statement of the complainant. When he reached the spot the complainant was not present. He could not tell the exact time when he left for the FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 6 of 14 hospital. The accused did not receive any injuries. He took accused for the purpose of inquiry to the hospital. He recorded the statement of complainant in the hospital on the same day of incident but he did not remember the exact time. He could not tell the exact time when he reached back at the spot. He prepared the site plan on the same day but he could not tell the exact time when he prepared the same. He did not obtain the signature of any witness on the site plan. He denied the suggestion that he received any complaint from the accused regarding the accident. He could not tell the time when he finally left the spot. He denied the suggestion that he and Ct. Raj Pal never visited the spot. He denied the suggestion that all proceedings were conducted in the PS. He denied the suggestion that case has been falsely prepared at the instance of the complainant.
5. Thereafter, prosecution evidence was closed.
6. Statement of accused was recorded and all the incriminating evidence coming on record was put to the accused in which he submitted that he had been falsely implicated in the present case. Accused examined himself as DW-1 in his defence.
(i) DW-1 Ajay Pandita deposed before the court that on 29.06.2016, at around 8:15 am, he was going to his office from Dwarka Sector-4 to Gurgaon. When he reached red light of Sector-10-19, he stopped at red light. After the signal becoming green, when he started moving at a very slow speed, suddenly one Wagon R car bearing no. DL3CZ 7634 driver jumped the red light and hit his vehicle bearing no. HR- 26BU 5201 on the right side. The said vehicle was in a very high speed.
FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 7 of 14After hitting his vehicle, the said vehicle tried to run away and was hit by the divider due to which vehicle turned and the driver was injured. He also complained to the police through email. He proved the copy of email as Mark-D1. He proved photographs in which damaged portion of car HR- 26BU 5201 was clearly shown as Mark-D2. The said incident occurred due to rash and negligent driving of the complainant who was coming from the night duty and had jumped the red light and police had falsely implicated him.
In his cross-examination, he admitted that at the time of incident his car was at left side from the car of complainant from the side of complainant. He admitted that car of complainant got turtled. He voluntarily stated that it was turtled after it struck against the divider. He had not directly make any complaint to the police. He only mailed to the police. He voluntarily stated that police never listened to his grievances throughout the day, therefore, he mailed the same. He had mailed and posted his complaint to DCP and Commissioner of Police regarding his grievances and he had an acknowledgment of the same by phone. He had not followed his complaint regarding any action taken by the police. He denied the suggestion that he had not followed his complaint to police as it was his own fault in the case. He denied the suggestion that at the time of incident there was red light for him and green light for complainant who was crossing the road and he jumped his red light and hit the car of the complainant. He denied the suggestion that the incident was caused by his own fault and driver of the Wagon R car also received injury due to his rash and negligent driving. He denied the suggestion that he was deposing falsely on point of green light and fact of hitting the car of complainant in order to save himself.
FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 8 of 147. No other witness was examined in defence and thereafter, DE was closed. Thereafter, final arguments were advanced by Ld. APP and Ld. Defence counsel.
8. It was argued by Ld. APP for the State that only two things that are needed to be proved for any case of an accident are (1) identification of the accused and (2) rash and negligence act. Both had been adequately proved by the prosecution. He has prayed for conviction of the accused.
9. On the other hand, it has been argued by Ld. counsel for the accused that accused have been falsely implicated in the present case as there was no negligence on the part of accused.
10. After hearing the arguments and going through the record, I have come to the following observations:
The accused has been charged u/s 279/338 IPC. As per Section 279 IPC, 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 a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
As per section 338 IPC, whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life or personal safety of others shall be punished with imprisonment of either FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 9 of 14 description for a term which may extend to two years or upto fine or with both.
The main requirements to be proved are:
(a) grievous hurt is caused;
(b) the act should be so rash and negligent that it endangers human life or personal safety of others.
(I) In the present case, first fact regarding grievous injury upon the victim has been duly proved as the accused has himself admitted in MLC No. 1083/16.
(II) As far as the fact of rashness and negligence is concerned, it is clear from the evidence of PW-1 who was the injured/complainant that the car of the accused which was Honda City broke the red light and hit his car from the left side. Due to the impact, not only the entire body of the complainant's car was damaged but the car turned turtle and the complainant got badly injured.
As far as the identity of the accused is concerned, the same has been fully established by injured, who has duly identified the accused in the Court. The identity of the vehicle has also been duly proved by the witness.
The present case is also based on the principle of res ispa loquitor which means that negligence can be inferred from the very nature of the accident or injury in the absence of direct evidence on how any accident happened. It has been stated by the complainant that while he was crossing the chowk after his red light turned green, the accused came driving breaking his own red light and banged into his car. The facts stated by the injured are sufficient to prove the negligence of the accused as there was no reason for a prudent driver to drive in such a manner and moreover the fact FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 10 of 14 that the car of the injured turned turtle shows that the accused was at an excessively high speed.
11. The accused has examined himself in defence evidence and has stated that it was the complainant who was driving at a high speed and his car turned turtle after hitting into his car from the right and then the divider. The defence of the accused cannot be believed as the photographs show the vehicle of the accused damaged from the front side and the accused says that his vehicle was hit on the right side. The front damage further shows that the collision took place due to the fault of the accused himself and had the vehicle of the complainant been on a high speed the vehicle of the accused would have turned turtled and not the vehicle of the complainant. Therefore, the condition of the car in which it was found after the accident also shows the way in which the same was driven and the way the accident took place. The facts of the case practically show that there was negligence on the part of the accused and nothing further remains to be proved.
12. In Vadivelu Thevar v. The State of Madras (1957 SCR 981) the Hon'ble Supreme Court is Court had divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. The first two categories they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. It is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 11 of 14 testimony in this context may be classified into three categories, namely:
i) Wholly reliable.
ii) Wholly unreliable.
iii) Neither wholly reliable nor wholly unreliable.
13. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.
14. Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). The Hon'ble Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material.
FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 12 of 14The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
15. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of S.N. Hussain v. 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".
16. It has been further observed in S.N. Hussain (Supra) as under:
"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".
17. Hence, in view of above discussion, I draw the inference that when the factum of rashness and negligence has been duly proved and the injuries are also not in dispute and further the identity of the accused is also established convincingly, the prosecution has been able to prove its case beyond reasonable doubt u/s 279/338 IPC.
FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 13 of 1418. Accordingly, accused Ajay Pandita stands convicted u/s 279/338 IPC.
19. Now to come up for arguments on sentence on 04.12.2018.
Announced in the open court on 29th November, 2018 (PURVA SAREEN) Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi Digitally signed by PURVA PURVA SAREEN SAREEN Date:
2018.12.03 17:02:13 +0530 FIR No.207/16 State vs. Ajay Pandita (Judgement) Page 14 of 14