Delhi District Court
State vs Vishnu on 19 February, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 232/2018
CNR No. -: DLSE020367712017
FIR No. -: 334/2015
Police Station -: Sarita Vihar
Section(s) -: 279/338/427 IPC
In the matter of -
STATE
VS.
VISHNU
S/o Kali Charan
R/o Village Raja Garhi,
PS Suril, Distt. Mathura, U.P.
... Accused Person
1. Name of Complainant :- Sanjay Kumar
Sharma
2. Name of Accused Person :- Vishnu
3. Offence complained of or proved :- 279/338/427 IPC
4. Plea of Accused Person :- Not guilty.
5. Date of Commission of offence :- 26.04.2015
6. Date of Filing of case :- 07.10.2015
7. Date of Reserving Order :- 23.01.2024
8. Date of Pronouncement :- 19.02.2024
9. Final Order :- Acquittal u/s
338/427 IPC
FIR No. 334/2015 State v. Vishnu Page 1 of 16
JUDGMENT
1. The case of prosecution in brief is that on 26.04.2015, at about 2.20 PM at road No. 13, Living Style Mall, Jasola (near red light), Sarita Vihar, New Delhi, within the jurisdiction of PS Sarita Vihar, the Accused was driving a dumper bearing registration number HR-74-6593 in a rash and negligent manner, so as to endanger human life and personal safety of others and while so driving Accused person has hit against the complainant Sanjay Kumar and caused grievous injury to him and on the said date, time and place he had also committed mischief by causing wrongful loss/damage to bicycle make Avon F/No. BH-97253 Black Colour of complainant Sanjay Kumar, valued at more than 50 rupees and thereby committed the offences punishable under section 279/338/427 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which the present FIR was lodged in PS Sarita Vihar.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed Accused person and chalan was presented in the court u/s 279/338 IPC and S. 56/192, 66(1)/192A, 146/196 and 115/190 of Motor Vehicles Act, 1988 on 07.10.2015. After taking cognizance of the offence, the Accused person was summoned to face trial.
3. On his appearance, a copy of chargesheet was supplied to him in terms of section 207 of CrPC. He thereafter pleaded guilty to FIR No. 334/2015 State v. Vishnu Page 2 of 16 the offences u/s 279 IPC and Section 56/192, 66(1)/192A, 146/196 and 115/190 of Motor Vehicles Act, 1988; and was convicted on his plea of guilt by Ld. Predecessor of this Court vide order dated 06.06.2016. He was sentenced to pay fine of Rs. 2000, which he had deposited. Vide order dated 06.06.2016, Ld. Predecessor of this Court had convicted the Accused for the offences u/s 279 IPC and Section 56/192, 66(1)/192A, 146/196 and 115/190 MV Act and he was sentenced to pay fine of Rs. 2000, which was also paid by him. Vide the same order, offence u/s 338 IPC was also compounded, subject to payment of settlement amount, however, since the same was not paid, the case was revived and proceeded further. On finding a prima facie case against the Accused person, notice under section 279/338/427 IPC was served upon against the Accused person on 14.07.2017 by Ld. Predecessor of this Court. The Accused person pleaded not guilty and claimed trial. It appears that inadvertently, the Ld. Predecessor of this Court served notice under Section 279 IPC on the Accused on 14.07.2017, as he had already been convicted by the Ld. Predecessor of the offence u/s 279 IPC vide order dated 06.06.2016. Since, once an Accused is acquitted/convicted for an offence, he cannot be subjected to trial again for the same offence arising out of the same facts, the undersigned is proceeding with the judgment only for offences u/s 338 and 427 IPC; as Accused has already been convicted on plea of guilt and sentenced for offence u/s 279 IPC by the Ld. Predecessor of this Court vide order dated 06.06.2016.
FIR No. 334/2015 State v. Vishnu Page 3 of 16PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the Accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW1 :- Sh. Sanjay Kumar.
(Complainant in the present case)
PW2 :- ASI Virender
(IO in the present case)
PW3 :- ASI Dayanand
(DO in the present case)
PW4 :- Ct. Ashok Kumar
(IO Accompanying witness in the present
case)
PW5 :- HC Tulsiram
(Arrest witness in the present case)
DOCUMENTARY EVIDENCE
Ex. PW1/A :- Written complaint of the Complainant.
Ex. P1 to :- Photographs of the offending vehicle and
Ex. P8 cycle of the complainant.
Ex. PW2/A :- Statement of the complainant.
Ex. PW2/B :- Rukka.
Ex. PW2/C :- Site plan.
Ex. PW2/D :- Seizure memo of the offending vehicle and
the bicycle.
Ex. PW2/E :- Notice to owner of offending vehicle u/s
133 MV Act and his reply.
Ex. PW2/G Arrest memo of the accused.
Ex. PW2/H Personal search memo of the accused.
Ex. PW2/I Seizure memo of the DL of the driver and
and Ex. offending truck.
PW2/J
FIR No. 334/2015 State v. Vishnu Page 4 of 16
Ex. PW2/K Mechanical inspection report of the
and Ex. offending vehicle and cycle.
PW2/L
Ex. PW3/A Copy of Rukka.
(OSR)
Ex. PW3/B Endorsement on rukka.
(OSR)
Ex. PW3/C Attested copy of DD No. 48B dt.
(OSR) 30.04.2015.
DOCUMENTS ADMITTED PURSUANT TO THE
STATEMENT OF ACCUSED U/S 294 CRPC
Ex. A1, Ex. A2 DD No. 26A, 27A and 33B all dt. 26.04.2015, and Ex. A3 PS Sarita Vihar.
Ex. A4 MLC No. 207/15 of injured Sanjay dt.
26.04.2015.
Ex. A5 TIP proceedings conducted by Ms. Sheetal
Chaudhary Pradhan, Ld. MM.
Ex. A6 Notice u/s 133 MV Act issued to owner of the
vehicle and his reply.
Ex. A7 Mechanical inspection report of victim's
bicycle.
Ex. A8 Mechanical inspection report of offending
vehicle.
Ex. A9 Superdarinama dt. 30.05.2015 in the name of
Sh. Sumit of vehicle bearing No. HR476593.
Ex. A10 Arrest memo of the accused.
FIR No. 334/2015 State v. Vishnu Page 5 of 16
5. During the course of trial, witnesses mentioned at Sr. No. 5, 7, 8, 9 and 10 were dropped from the list of witnesses, pursuant to the statement of the Accused recorded u/s 294 CrPC.
6. PW-1/Sh.Sanjay Kumar deposed that on 26.04.2015, at about 2.20PM, he was going towards the Kalandi Kunj with his cycle and when he reached near service road red light infront of living style mall, Jasola; PW-1 started drinking the water, and in the meantime accused driver came from his back side with Truck (dumper) HR-74-
6593 in a very rash and negligent manner and hit against PW-1 from backside and he fell down on the ground with his cycle. PW-1 came under the offending Truck and his right leg came under the front tire of the offending vehicle and he also sustained injuries on his right hand. Thereafter, driver of the offending vehicle ran away from the spot and left the vehicle there. Thereafter, some public persons had gathered at the spot and one person who had given him water for drinking called at 100 number. Thereafter, police officials came at the spot and inquired about the accident. The complainant was taken to Apollo Hospital and thereafter to Safdarjung Hospital for treatment. The complaint of PW-1 was recorded by the police officials which is Ex-PW1/A. Supplementary statement of PW-1 was also recorded by the IO regarding the accident and identification of the accused. PW-1 correctly identified the accused and the photographs of offending vehicle in court. Photographs of the same is Ex-P1 to P8 (Colly).
In his cross examination, PW-1 deposed that at the time of accident he was drinking water on a stall present at the left side of the road and he cannot say whether any other vehicle or person was FIR No. 334/2015 State v. Vishnu Page 6 of 16 hit by the offending vehicle in the same transaction. PW-1 admitted that other vehicles were also coming from behind the offending vehicle. However, the accused hit his bicycle in his efforts to cross the road at the time when the traffic signal was yellow and turning into red. PW-1 deposed that he explained the description of the spot to the police in the hospital and police prepared site plan and he never visited the spot with the IO and he cannot say whether police had cited the said stall owner as witness in the present case or not. PW-1 denied the suggestion that the present accident happened due to his fault as he suddenly came in front of offending vehicle which was crossing the red light and that he is deposing falsely.
7. PW-2/ASI Virender deposed that on 26.04.2015, PW-2 was posted as HC at the PS Sarita Vihar. On that day, PW-2 received DD No.26A regarding accident at Living Style Mall Road No.13 Jasola. Thereafter, PW-2 alongwith Ct. Ashok Kumar reached at the spot and they found the offending vehicle No. HR-74-6593 and cycle of the complainant. At the spot, they came to know from some public persons that the injured was taken to the hospital. Thereafter, they got DD No.33B from the PS regarding that injured being admitted in the Apollo Hospital. Thereafter, PW-2 went to the hospital and left Ct. Ashok at the spot. At the hospital, PW-2 got MLC No.207/15 of the injured and thereafter he came to know from the family member of the injured that injured was shifted to the Safdarjung hospital. Thereafter, PW-2 went to the Safdarjung hospital, where injured/complainant was in the operation room. Thereafter on 27.04.2015, PW-2 again visited the Safdarjung Hospital and recorded the statement of the complainant which is Ex-PW2/A. On the basis of said FIR, PW-2 prepared rukka FIR No. 334/2015 State v. Vishnu Page 7 of 16 which is Ex-PW2/B and handed over the same to the Duty Officer for the registration of the FIR. Thereafter, PW-2 again visited the spot and prepared the site plan which is Ex-PW2/C. On the same date, PW-2 also prepared the seizure memo of the offending truck and seizure memo of bicycle of the complainant which is Ex-PW2/D. Thereafter, PW-2 issued the notice to the owner of the offending vehicle u/s 133 MV Act and owner of the offending vehicle had replied the same that the said accused, namely, Vishnu/ driver was driving the vehicle on the date of accident which is Ex- PW2/E. On 18.05.2015, PW-2 arrested the accused driver and conducted his personal search and same are Ex-PW2/G & Ex-PW2/H. On the same date, PW-2 seized the DL of the driver and offending Truck which is Ex-PW2/1 & Ex- PW2/J. TIP of the accused driver was conducted on 25.05.2015 wherein accused refused to participate the proceedings. PW-2 also took the photographs of the offending vehicle and cycle of the complainant on his mobile phone due to non-availability of the photographers. Upon confronting the same photographs, PW-2 identified the same and is Ex-P1 to P8. On the same date of arrest, PW-2 released to the accused driver on police bail. PW-2 also got conducted the mechanical inspection of the offending truck and bicycle of the complainant which is Ex-PW2/K & PW2/L. PW-2 also recorded the supplementary statement of the complainant. PW-2 correctly identified the accused in court.
In his cross examination, PW-2 deposed that he met the complainant for the first time in Safdarjung Hospital on 27.04.2015 and no documents had been prepared prior to that and he did not meet the complainant for second time and no public witnesses were found, FIR No. 334/2015 State v. Vishnu Page 8 of 16 no CCTV camera footage was found. PW-2 denied the suggestion that the accused was shown to the complainant and hence he refused for TIP. PW-2 deposed that the cut on the road no. 13 near the spot of accident has been marked by the witness in green, on the site plan Ex. PW-2/C. PW-2 admitted that the damage on the victim's cycle is more on the front tyre, than on the back. PW-2 denied the suggestion that the accident happened due to mistake of the complainant by coming from the wrong side and that he is deposing falsely.
8. PW-3/ASI Dayanand, the duty officer proved the registration of the FIR and the lodging of the DDs. He was not cross- examined by the Accused.
9. PW-4/Ct. Ashok Kumar has deposed on the same lines as PW-2 and hence his testimony is not being repeated for purposes of brevity.
10. PW-5/HC Tulsiram deposed that on 18.05.2015, he was posted at PS Sarita Vihar as Ct. On that day, PW-5 joined the investigation of the present case alongwith IO/HC Virender Singh. On that day, the RC owner of the offending vehicle namely Waris came to the PS alongwith accused driver Vishnu and thereafter, he also produced the RC of the offending vehicle and the same was seized by the IO vide seizure memo already Ex. PW2/J. IO also seized the DL of the accused vide seizure memo Ex. PW2/I. Thereafter, the accused was arrested vide arrest memo Ex. PW2/G and conducted his personal search vide Ex. PW2/H. Thereafter, accused was released on police bail. Thereafter, IO recorded the statement of PW-5. PW-5 correctly identified the accused in court.
FIR No. 334/2015 State v. Vishnu Page 9 of 16In his cross examination, PW-5 admitted that all the proceedings were conducted in PS in his presence and that he did not have any personal knowledge with regard to the accident, since he was not an eye witness.
STATEMENT OF ACCUSED
11. Thereafter, before the start of defence evidence, in order to allow the Accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of Accused was recorded without oath on 12.12.2023 under section 313 CrPC in which he stated that he is innocent and he has been falsely implicated in the present case. He further stated that he did not wish to lead DE. However, no defence evidence was led.
ARGUMENTS AND ANALYSIS
12. I have heard the Ld. APP for the state and Ld. counsel for the Accused at length. I have also given my thoughtful consideration to the material appearing on record.
13. It is argued by the Ld. APP for the state that there is sufficient material on record to convict the Accused for the said offences.
14. Per contra, the Ld. LAC for the Accused has argued that the state has failed to establish its case beyond reasonable doubt. It is also stated that the prosecution has failed to prove that the offending vehicle was being driven in a rash and negligent manner. As such, it is prayed that the Accused person be acquitted for the said offences.
FIR No. 334/2015 State v. Vishnu Page 10 of 1615. The Accused had pleaded guilty to the offences u/s 279 IPC and Section 56/192, 66(1)/192A, 146/196 and 115/190 of Motor Vehicles Act, 1988; and was convicted on his plea of guilt by Ld. Predecessor of this Court vide order dated 06.06.2016. He was sentenced to pay fine of Rs. 2000, which he had deposited. Hence, vide order dated 06.06.2016, Ld. Predecessor of this Court had convicted the Accused for the offences u/s 279 IPC and Section 56/192, 66(1)/192A, 146/196 and 115/190 MV Act and he was sentenced to pay fine of Rs. 2000, which was also paid by him. However, it appears that inadvertently, the Ld. Predecessor of this Court served notice under Section 279 IPC on the Accused on 14.07.2017, as he had already been convicted by the Ld. Predecessor of the offence u/s 279 IPC vide order dated 06.06.2016. Since, once an Accused is acquitted/convicted for an offence, he cannot be subjected to trial again for the same offence arising out of the same facts, the undersigned is proceeding with the judgment only for offences u/s 338 and 427 IPC; as Accused has already been convicted on plea of guilty and sentenced for offence u/s 279 IPC by the Ld. Predecessor of this Court vide order dated 06.06.2016. Accordingly, the Accused person has been tried for the offences under section 338/427 IPC.
16. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the Accused has to be rebutted by the prosecution by reducing cogent evidence that points towards the guilt of the Accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
FIR No. 334/2015 State v. Vishnu Page 11 of 1617. The fact that the Accused was driving the offending vehicle in question is proved from the testimony of PW-1 (who has correctly identified the Accused as the driver of the offending vehicle in his testimony) and the reply to notice u/s 133 MV Act. Further, it is also seen that the Accused had refused to get his TIP conducted, despite knowing the consequences of the said refusal. Hence, an adverse inference is also drawn from his refusal to get his TIP conducted. Hence, it is proved that the Accused was driving the offending vehicle at the time of the incident, on the spot of incident, which is a public way, as per the site plan.
18. Further, from the testimony of PW-1, PW-2 and PW-4, it is proved that at the time of incident the offending vehicle and the bicycle of the victim was found in an accidental position. The presence of the offending vehicle at the spot of incident at the time of incident in the accidental condition is also reflective of the fact of existence of an accident between the two vehicles. The mechanical inspection report also corroborates the fact of accident between the offending vehicle and the victim's bicycle. Hence, the question that arises is whether the Accused was driving the offending vehicle in a rash and negligent manner and thereby caused wrongful loss to the bicycle of the victim and grievous injuries to the victim. In the present case, from the testimony of PW-1, it appears that the accident took place when the victim was drinking water at a water stall on the left side of the road and the offending vehicle hit him from behind, crushing the cycle and causing injuries on the right leg and right hand of the victim. However, in his cross-examination, PW-1 has stated that the signal was changing from orange to red and was not red at the time FIR No. 334/2015 State v. Vishnu Page 12 of 16 of the accident. Hence, it appears that the accident took place when the victim was standing stationery on a moving road when the signal was not red. Further, since the accident has taken place on the left side of the road, it appears the offending vehicle (heavy lane) was being driven in the correct lane. Further, apart from PW-1 stating that the Accused was driving in a high speed, no other averment as to the manner in which the offending vehicle was being driven has not been given. The existence of an accident by itself does not give rise to an assumption of rashness/negligence. The IO has not investigated the presence of skid marks etc. and has not even stated the approximate speed of the offending vehicle. In fact, in the site plan, even the water stall is not shown. Further, while as per the mechanical inspection report, the impact of the accident was on the rear end, visibly the front portion of the victim's cycle is affected. In these circumstances, the manner of driving of the vehicle by the Accused has not been established. Since, all ingredients are cumulative, no purpose would be served by discussing the remaining ingredients. Hence, it is not proved that the Accused was driving rashly or negligently the offending vehicle or that he caused wrongful loss to the victim by his act.
19. The Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka AIR 2007 SC 1064 while dealing with rashness/culpable negligence has observed:
"7. ...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. Rashness means doing FIR No. 334/2015 State v. Vishnu Page 13 of 16 an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors."
20. A question whether the Accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. Rashness and negligence in driving a vehicle are subjective concept and no straight jacket formula can be put to use to ascertain the rashness or negligence while driving the vehicle and rashness and negligence have to be proved like a 'relevant fact' during the course of trial and this onus lies upon the prosecution. There cannot be any reason including the unfortunate death of a person involved in the incident/accident which may compel the Court to presume rashness or negligence in driving the offending vehicle.
21. The Hon'ble Supreme Court in judgment titled Miyam vs. State of A.P. (2000) 7 SCC 72 held:
"...It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption FIR No. 334/2015 State v. Vishnu Page 14 of 16 and in such a case, the driver has to explain how the accident happened w/o negligence on his part..."
22. What needs to be seen here is whether the Accused in the present matter was driving his vehicle in a rash and negligent manner. It is clear from the prosecution witnesses, that no evidence has been led to show that the Accused was driving the offending vehicle in a rash and negligent manner. The occurrence of the accident itself does not give rise to an assumption of rashness/negligence. Further, the injured, PW-1 has not deposed the exact condition of the manner in which the offending vehicle was being driven. The prosecution also failed to give any other documentary or ocular evidence regarding the condition in which the offending vehicle was being driven, or any indication of rash and negligent driving.
23. In the present case, the IO has also failed to state the approximate speed of offending vehicle at the time of the accident, speed limit of the road, or the manner in which the traffic was moving and about the status of traffic signal, the skid marks etc.
24. Furthermore, it has been held by the Hon'ble Supreme Court in Dr. S.L. Goswami vs. State of Madhya Pradesh 197 SCC (Crl.) 258 that the Accused persons are entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution. In the present case, as already noted above, the prosecution could not discharge the onus of proving the ingredients of offences in question and thus, the Accused person is entitled to benefit of doubt.
FIR No. 334/2015 State v. Vishnu Page 15 of 1625. Hence, it has not been proved that the offending vehicle was being driven in a rash and negligent manner. Since the requirements of section 427/338 IPC are cumulative in nature, the fact that the driving of the offending vehicle in a rash and negligent manner could not be proved by the prosecution, no purpose would be served by discussing the remaining ingredients of the offence.
26. To recapitulate the above discussion, to bring home the guilt of Accused person, the prosecution was required to prove the offence under section 338/427 IPC beyond reasonable doubt. There is no evidence to state that he was driving the offending vehicle in a rash and negligent manner. Further, the ingredients of the offence are not fulfilled from the material on record. In the present case, as already noted above, the prosecution could not discharge the onus of proving the ingredients of offences in question and thus, the Accused person is entitled to benefit of doubt.
27. Resultantly, the Accused person namely, VISHNU, S/O SH. KALI CHARAN is hereby found not guilty. He is hereby ACQUITTED of the offences under section 338/427 IPC.
28. File be consigned to record room after due compliance.
Announced in open court on 19.02.2024 in the presence of the Accused.
The judgment contains 16 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) MM-05, South East District, Saket Courts, New Delhi/19.02.2024 FIR No. 334/2015 State v. Vishnu Page 16 of 16