Delhi District Court
State vs . Deepak Kumar on 9 April, 2012
1
IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Deepak Kumar
FIR No. 479/00
PS: Keshav Puram
U/s 279/338 IPC
Case ID No. 02404R0261102001
JUDGEMENT
A) Sl. No. of the case : 57/2
B) The date of commission : 21.12.2000
of offence
C) The name of the complainant : Sh. Surender Kumar s/o Sh. Ram
Prakash
r/o C3,/59B, Lawrence Road, Delhi.
D) The name & address of accused : Deepak Kumar
S/o Sh. Prem Chand
R/o H.No. 606, Gali No. 43, Subh Nagar,
Tri Nagar, Delhi
E) Offences complained of : U/s 279/338 IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Convicted
H) The date of such order : 30.03.2012
Date of Institution: 23.05.2001
Judgment reserved on: 09.04.2012
Judgment announced on: 09.04.2012
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on 21.12.00 at about 3.30 pm FIR No. 479/00 Page No.1/12 2 at Road No. 37 near Prembadi Flyover, Lawrence Road, Delhi, the accused Deepak Kumar was found driving Scooter No. DNM2093 in a manner so rashly or negligently as to endanger human life and personal safety of others and while driving the aforesaid scooter in said manner, he hit against one Surender Kumar who suffered grievous injuries and thereby, he committed offences punishable u/s 279/338 IPC.
2. In brief, the case of prosecution as per charge sheet is that on receipt of DD No. 24A regarding road accident on 21.12.00, SI Surender Singh alongwith Ct. Deva Nand reached Hindu Rao Hospital where he obtained MLC of injured namely Sh. Surender Kumar who was declared fit for statement. However, the injured expressed his inability to give his statement on account of severe pain. Accordingly, SI Surender Singh recorded the statement of injured at Hindu Rao Hospital on 22.12.00 to the effect that on 21.12.00 at about 3.30 pm when the injured was walking towards his house situated at Lawrence Road and reached near Prembari Flyover, one two wheeler scooter No. DNM2093 being driven in rash and negligent manner, hit against him due to which he fell down and received injuries. The said scooter driver fled away from the spot on seeing that he had received severe injuries. On the basis of said statement and MLC of injured, FIR in respect of offences u/s 279/337 IPC was got registered and investigation was conducted by SI Surender Singh who prepared site plan, served notice u/s 133 MV Act upon the FIR No. 479/00 Page No.2/12 3 registered owner of two wheeler scooter no. DNM2093, arrested the accused, got said two wheeler scooter seized and also got it mechanically examined.
3. After completion of investigation, charge sheet in respect of offences U/s 279/338 IPC was prepared and filed in the Court against accused and accordingly, cognizance was taken by Ld. Predecessor.
4. Complete copies were supplied to accused as per compliance of section 207 Cr.P.C and arguments on charge were heard. Ld. Predecessor served the notice for the offences U/s 279/338 IPC upon the accused vide order dated 04.03.2003.
5. In support of its case, the prosecution has examined ten witnesses in support of its case till 15.03.2012 namely PW1 Dr. Sanjay Kumar, PW2 Sh. Surender Kumar, PW3 Ct. Ranbir, PW4 Ct. Deva Nand, PW5 SI Jai Prakash, PW6 ASI Raj Kapoor, PW7 Sh. Rameshwar Dass, PW8 HC Vinod Kumar, PW9 Dr. Sangeeta CMO HRH and PW10 SI Surender Singh.
6. Thereafter, the statement u/s 313 Cr.P.C of accused was recorded on 15.03.2012 wherein his defence was of general denial. Although, he admitted that he was driving two wheeler scooter no. DNM2093 on 21.12.00 at about 3.30 pm at Road No. 37, Prembari Flyover, Lawrence Road, Delhi but he denied that he was FIR No. 479/00 Page No.3/12 4 driving the said scooter in rash and negligent manner or had hit the said scooter against one pedestrian. Rather, he stated that when he was going on his two wheeler scooter at the place of accident, one person who walking at the footpath, came in front of his scooter all of a sudden at the time when he was giving side to another car.
7. I have already heard Ld. APP for the State and Ld. counsel Sh. Sunil Tomar adv on behalf of accused. I have also carefully perused the material available on record.
PW1 Dr. Sanjay Kumar has proved MLC Ex.PW1/A of injured Surender Kumar. The said witness has not been cross examined by the accused despite grant of opportunity.
PW3 Ct. Ranbir deposed that he alongwith SI Surender reached at Hindu Rao Hospital where IO recorded the statement of injured Surender Kumar. He prepared rukka and handed over to him for registration of the case. He got the case registered, came back to the spot and handed over the same to IO. IO had prepared the site plan and also recorded his statement. The said witness has not been cross examined by the accused despite grant of opportunity. FIR No. 479/00 Page No.4/12 5
PW4 Ct. Deva Nand deposed that on 21.12.00, he alongwith SI Surender Singh were on emergency duty. IO received DD No. 24A on which he alongwith IO reached Hindu Rao Hospital and collected MLC of injured Surender Kumar on which doctor declared him fit for statement but he was feeling pain so he did not give statement on that day. The said witness has not been cross examined by the accused despite grant of opportunity.
PW5 SI Jai Prakash is DO who has proved carbon copy of FIR as Ex.PW5/A and his endorsement on rukka as Ex.PW5/B. The said witness has not been cross examined by the accused despite grant of opportunity.
PW6 ASI Raj Kapoor deposed that on 21.12.00 at about 8.50 pm, he received telephonic call from duty constable regarding the accident which was recorded vide DD No. 24A. He testified that the original DD register containing said DD entry has already been destroyed by order of the then DCP/NW, Delhi. He proved photocopy of the said order as Ex.PW6/A. The said witness has not been cross examined by the accused despite grant of opportunity.
PW8 HC Vinod Kumar deposed that on 21.12.00 at about 4.40 pm, one injured namely Surender Kumar was brought to the aforesaid hospital with the alleged history of RTA by the PCR. The said witness has not been cross examined FIR No. 479/00 Page No.5/12 6 by the accused despite grant of opportunity.
PW9 namely Dr. Sangeeta CMO Hindu Rao Hospital has proved MLC No. 14506/00 of injured Surender Kumar dt. 21.12.00 as Ex.PW9/A. She has not been cross examined by the accused despite grant of opportunity.
8. In order to bring home the guilt of accused for the offences charged against him, prosecution was required to prove the following points:
1. that it was the accused who was driving the offending scooter No. DNM2093 at the time of accident.
2. that the accused was driving the offending scooter in rash and negligent manner.
3. that the accused had caused accident in question while driving the offending vehicle in rash and negligent manner.
4. that due to accident, grievous injuries were caused to the injured namely Surender Kumar.
9. The only star witness produced by prosecution during trial is the injured namely Sh. Surender Kumar who has been examined as PW2. He entered into witness box and deposed on the lines of prosecution story to the extent that two wheeler scooter no. DNM2093 was being driven in rash and negligent manner on the date, time and place of accident and had hit against him due to which he sustained injuries and the scooter driver had fled away from the spot alongwith FIR No. 479/00 Page No.6/12 7 scooter. He also proved his statement Ex.PW2/A recorded by the police. However, he failed to identify the accused to be the driver of aforesaid two wheeler scooter. He was also cross examined by Ld. APP for the State on the said aspect. During such cross examination, he denied to have made statement appearing at portion A to A1 in the statement mark A to the police. Although, he admitted his thumb impression appearing on arrest memo, search memo and seizure memo Ex.PW2/B, Ex.PW2/C and Ex. PW2/D but clarified that his thumb impressions were obtained by police on blank papers. The said witness has not been cross examined by the accused despite grant of opportunity.
10. While opening his arguments, Ld. defence counsel submitted that the only star witness of prosecution i.e PW2 namely Sh. Surender Kumar has failed to identify the accused to be the driver of the offending two wheeler scooter and thus, the prosecution has not been able to prove its case against the accused beyond reasonable doubt. The next bone of contention raised on behalf of accused is that no independent public witness has been joined during investigation by the investigating agency which is in violation of Section 100 (4) Cr.P.C. Thus, the accused is entitled to be acquitted in this case. Ld. Counsel of the accused has also argued that PW7 deposed during his statement that reply to notice u/s 133 MV Act is in own handwriting which is factually incorrect and thus, no reliance should be placed on the statement of said witness.
FIR No. 479/00 Page No.7/12 8
11. On the other hand, Ld. APP for the State has argued that the charges against the present accused have been duly established in view of the testimony of PW2 as well as other prosecution witnesses examined during trial. Ld. APP for the State argued that accused himself has admitted in his statement u/s 313 Cr.P.C that he was driving the offending two wheeler scooter no. DNM2093 at the given time, date and place of accident and PW2 Sh. Surender Kumar/injured has supported the case of prosecution on all other points. Therefore, accused should be convicted.
12. No doubt, the injured namely Sh. Surender Kumar (PW2) has not identified the present accused to be the driver of offending two wheeler scooter bearing no. DNM2093. However, the said witness has fully supported the prosecution story on all other material points. He has categorically testified that accident had been caused by two wheeler scooter no. DNM2093. He has also categorically deposed that the said two wheeler scooter was being driven in rash and negligent manner and had struck against him due to which he had sustained injuries. He has also proved his statement Ex.PW2/A recorded by the police. The testimony of PW9 namely Dr. Sangeeta and MLC Ex.PW9/A proved by her, clearly corroborates the testimony of PW2 and shows that said injured had received grievous injures on his person due to accident in question. The testimonies of PW2 as well as PW9 remained uncrossed and unchallenged. It is well settled law that the testimony of a witness which has not cross examined by opposite party, amounts to admission FIR No. 479/00 Page No.8/12 9 thereof. Still if any authority is required then reference with advantage can be made to the judgment reported at 1976 RLR(N) 112.
13. In view of the fact that relevant part of the testimony of injured namely Sh. Surender Kumar(PW2) has not been cross examined on vital aspects regarding rash and negligent driving of aforesaid two wheeler scooter as well as of causing accident by the same, are not cross examined by the accused despite grant of opportunity, same amounts to admission thereof on the part of the accused.
14. Not only this, mechanical inspection report Ex.PW10/C in respect of aforesaid two wheeler scooter has also remained unchallenged from the side of accused. The perusal of said report shows that the foot brake, engine, gear, handle, head light, etc of the aforesaid two wheeler scooter were in working order at the time of its inspection by Retd. SI Jai Singh. Thus, there was no possibility of accident having been caused on account of failure of brakes or on any other similar ground. Even otherwise, it is nowhere the case of accused that accident had taken place due to any reason beyond his control. Rather, the accused has taken defence in his statement u/s 313 Cr.P.C, that the injured suddenly came in front of his two wheeler scooter when he was giving side to another car. Hence, it has been duly established that the accident had been caused by the aforesaid two wheeler scooter on account of its rash and negligent driving by the driver. FIR No. 479/00 Page No.9/12 10
15. Now, it has to be seen as to whether the identity of accused to be the driver of offending two wheeler scooter no. DNM2093 has been established during trial or not. In this regard, the testimony of PW7 namely Sh. Rameshwar Dass who is the registered owner of the aforesaid two wheeler scooter, is material. The said prosecution witness categorically deposed that he was the registered owner of said two wheeler scooter and he had provided the said scooter to the accused in the month of December, 2000 as the accused is his cousin brother. Not only this, he also identified the accused before the Court. During his cross examination by Ld. APP for the State, he also admitted that he had submitted reply Ex.PW7/A to the notice u/s 133 MV Act and identified his handwriting appearing in the said reply. He also admitted that as per said reply Ex.PW7/A, the accused was driving the aforesaid two wheeler scooter on the given date, time and place of accident. He also proved the said two wheeler scooter as Ex.P1 during trial. The said witness has not been cross examined by the accused despite grant of opportunity. Thus, the entire deposition made by him amounts to admission thereof on the part of accused in view of the judgment referred supra.
16. Moreover, the accused himself has admitted during his statement u/s 313 Cr.P.C recorded on 15.03.12 that he was driving the aforesaid two wheeler scooter on 21.12.00 at 3.30 pm at the given place of accident. The said admission on the part of the accused can certainly be relied by the Court in view of the provision FIR No. 479/00 Page No.10/12 11 contained in Section 313 (4) Cr.P.C and corroborates the testimony of PW7 Sh Rameshwar Dass. In view of the testimony of said witness coupled with the admission made by accused himself in his statement u/s 313 Cr.P.C, the Court agrees with the submission made by Ld. APP for the State that the prosecution has been able to prove beyond reasonable doubt about the identity of accused as driver of the offending two wheeler scooter.
17. The defence raised by accused that the injured had suddenly came in front of his two wheeler scooter due to which the accident took place, could not be proved either during the cross examination of prosecution witnesses or otherwise. It is nowhere the case of accused that injured namely Sh. Surender Kumar (PW2) or any other prosecution witness had any kind of enmity against him so as to falsely implicate him in this case or to depose falsely before the Court.
18. In the present case, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the witnesses including police officials. Although the accused in his statement claimed that he is innocent but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody's guess as to why injured namely Sh. Surender Kumar (PW2) or the police officials would do this. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from the accused was to at FIR No. 479/00 Page No.11/12 12 least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out the testimony of witnesses.
19. In the light of aforesaid discussion, Court is of the view that the prosecution has been able to prove that the accused herein was driving the offending two wheeler scooter no. DNM2093 at the given time, date and place in rash and negligent manner and while driving the said scooter in aforesaid manner, he had caused the accident resulting into grievous injuries suffered by Sh. Surender Kumar. Consequently, the accused is convicted in respect of offences u/s 279/338 IPC.
Announced in open Court (VIDYA PRAKASH)
Dated: 09.04.2012 Addl. Chief Metropolitan Magistrate1
Rohini, Delhi.
FIR No. 479/00 Page No.12/12