Delhi District Court
State vs . Shamshad on 28 January, 2023
IN THE COURT OF SH. JITENDER: METROPOITAN
MAGISTRATE01 : NORTH : ROHINI COURTS : DELHI.
STATE VS. SHAMSHAD
FIR Number : 632/2012.
Under Section : 279/338 IPC.
Police Station : Narela.
JUDGMENT
a) Registration no. of case : 5291064/2016
b) Name & address of the : Rukhsana
complainant W/o Sh. Raheem
R/o H. No. E3415, J J Colony
Bawana, Delhi
c) Name & address of : Mohd. Shamshad
accused S/o Md. Islaam
R/o H. No. H84, J J Colony
Bawana, Delhi
d) Date of Commission of : 17.11.2012
offence
e) Offence complained of : U/s 279/338 IPC
FIR No. 623/2012 PS Narela State Vs. Shamshad Page 1 of 33
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted u/s 279/338 IPC
and
Convicted u/s 3/181 MV Act
Date of Institution : 02.04.2014
Judgment Pronounced on : 28.01.2023
JUDGMENT
Brief facts:
1. The case of the prosecution is that on 17/11/2012 at about 7:30 PM at Main road J.J. Colony, Bawana, Delhi, near Jhanda Chowk (hereinafter the "spot" or "the place of accident") one vehicle i.e. Champion Tempo bearing Registration No. DL 1LJ 9882 (hereinafter the "offending vehicle") without any valid driving license was being driven at a public place in a rash and negligent manner so as to endanger the human life and personal safety of others and hit against a pedestrian namely Ruksana W/o Mohd. Rahim and thereby caused the injuries to her. The present FIR 623/2012 was registered under section 279/338 IPC & under FIR No. 623/2012 PS Narela State Vs. Shamshad Page 2 of 33 section 3/181 MV Act on the complaint of injured Ruksana.
2. On the basis of the investigation carried out by the police, chargesheet was filed under section 173 Cr.P.C in the court on 02/04/2014 and chargesheet and other relevant document were supplied to the accused in compliance of section 207 Cr.P.C to the satisfaction of the accused.
3. Notice for committing the offence punishable under section 279/338A IPC and under section 3/181 MV Act was served upon the accused on 18/05/2015 to which accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for PE.
Prosecution Evidence
4. To prove its case, prosecution has examined as many as 11 witnesses. The crux of their respective testimonies as follows:
4.1 PW1 Phool Babu deposed that he was the owner of tempo no. DL1LJ9882 which was seized by the IO. Notice U/s 133 MV Act was served upon him in which he had replied that accused Md. Shamshad was driving the vehicle in the year 2012 vide his FIR No. 623/2012 PS Narela State Vs. Shamshad Page 3 of 33 reply Ex PW1/A bearing his thumb impression at point A. However, he could not tell the exact date. Accused Mohd Shamshad was correctly identified by the witness. He got released the said tempo on superdari vide superdarinama Ex PW1/B. He had not brought abovesaid vehicle. Photographs of the said tempo were correctly identified by the witness as Ex P1.
Thereafter, Ld APP sought permission of the Court to ask some leading questions as the witness was not stating the complete facts. Same was allowed.
In such examination, the witness stated that on 17.11.2012 accused was driving the said vehicle.
Thereafter, the witness was crossexamined by the Ld. Counsel for accused. In such crossexamination, the witness stated that he did not remember the date of incident. The witness stated that accused Shamshad had told him about the said accident through telephone when he was at his home. He reached at the spot at 10.30 PM. He did not remember whether his vehicle had damaged due to the accident. Again said, his vehicle had damaged due to said accident and stated that after that he went to PS from the spot. He had got his vehicle released and at the time of accident, his vehicle was not insured.
FIR No. 623/2012 PS Narela State Vs. Shamshad Page 4 of 334.2 PW2 Mohd. Jamshad deposed that he was residing at House no. A720, JJ Colony, Bawana, Delhi. On 17.11.2021, he along with accused Shamshad was going from Karol Bagh towards Bawana on a Champion vehicle whose number he did not remember. He was sitting behind the accused and the accused was driving the vehicle in a rash and negligent manner. Accident had happened at JJ colony, Jhanda Chowk, Bawana at about 7.30 PM. Due to negligent driving, the accused hit his vehicle against a lady. The lady was taken to hospital as she sustained injuries. Public persons gave beatings to accused where after he fled away from the spot. Accused was correctly identified by the witness. He stated that he can identify the offending vehicle if the same is shown to him. Photographs of case property Ex PW1 were correctly identified by him.
Thereafter, Ld APP sought permission to the court to cross examine the witness as he was resiling from his earlier statement. Same was allowed.
In such examination, the witness stated that police officials took the injured lady to the M.V. Hospital, Poot Khurd. The accident had happened due to rash and negligent driving of accused. Witness further stated that the registration number of Champion was DL1LJ9882.
FIR No. 623/2012 PS Narela State Vs. Shamshad Page 5 of 33Thereafter, witness was crossexamined by the Ld. Counsel for accused. In such crossexamination, witness stated that when the accident had happened, he was sitting beside the accused in the said vehicle. He could only remember the last digits of offending vehicle as 9882. He stated that they were going on the said vehicle from Karol Bagh towards Bawana. He stated that the driver was driving the said vehicle in normal speed and the spot was a crowded area and that the accident had happened at about 7.30 pm, one pedestrian lady was coming on the wrong side, due to said accident, she fell down on the road. He could not tell whether she sustained injuries or not. He was beaten by public persons.
Thereafter, Ld APP sought permission to the court to re examine the witness regarding the manner of driving by which the accused was driving as he was resiling from his earlier statement. Same was allowed. In such reexamination, witness stated that the accused was not driving the vehicle at fast, rash and negligent manner.
Thereafter, question was put forth by the court as to whether during examinationinchief, he said that the accused was driving his vehicle at a very fast speed in rash and negligent manner but suddenly in crossexamination, he told that the driver was driving FIR No. 623/2012 PS Narela State Vs. Shamshad Page 6 of 33 the vehicle at normal speed as the spot was a crowded area. Witness stated that he did not know what was written in his testimony in English, however, he had told that it was market but he was driving in "Halki Si Speed".
4.3 PW3 ASI Brij Lal deposed that on 17.11.2012, he was posted at outer zone PCR and he was deputed on L49 PCR Van. At about 7.30 pm, they received a call regarding an accident at main road JJ Colony, Bawana. Thereafter, he along with his PCR Staff reached at the spot and took the injured to Mahavir valmiki Hospital and got him admitted there. His statement was recorded on 18.11.2012.
4.4 PW4 ASI Kushal Pal Singh deposed that on 17/18 112012, he was posted as HC at PS Narela. He was working as a Duty Officer from 12.00 midnight to 8.00 am. At about 12.05 midnight, Ct Rajender handed over to him the rukka sent by ASI Dharam Pal, on the basis of which, he got registered the FIR through computer installed at PS Narela. FIR Ex PW4/A. After that he made endorsement on the rukka Ex PW4/B the same was bearing his signature at Point A. FIR No. 623/2012 PS Narela State Vs. Shamshad Page 7 of 33 Thereafter, Witness was crossexamined by the Ld. Counsel for accused. In such crossexamination, witness stated that it took about 30 minutes in recording the FIR. He denied the suggestion that FIR was antetime and antedated.
4.5 PW5 ASI Brij Lal deposed that on 17.11.2012, he was posted as ASI at PCR Van L49. He received a call regarding accident and he went to the spot i.e. Main Road, JJ Colony, Bawana, Delhi where he met with injured Rukhsana and got her admitted in MB hospital, Pooth Khurd, Delhi Vide MLC no. 4365/12 at around 8.13 pm. The injured sustained injury in her head and right leg. IO recorded his statement on 18.11.2012 at JJ Colony base.
Therefore, witness was crossexamined by the Ld. Counsel for accused. In such crossexamination, witness stated that he received a call at around 7.30 pm. It took about 10 minutes in reaching the spot and also took about 10 minutes to reach the hospital. He denied the suggestion that he had never received any call or got the injured admitted in the hospital.
4.6 PW6 Ct Babu Khan deposed that he was posted as Constable at PS Narela and was working as DD Writer from 4.00 pm FIR No. 623/2012 PS Narela State Vs. Shamshad Page 8 of 33 to 12.00 midnight. Wireless operater came to DO room and informed him about quarrel and accident at Jhandawala Chowk, JJ Colony, Bawana, Delhi and also information about snatching of Rs. 80,000/. He recorded the said information at serial no. 98 in the DD register B and handed over the copy of the same to ASI Dharampal who left for the spot with Ct Rajinder. The DD entry wasEx PW6/A (OSR).
Therefore, witness was crossexamined by the Ld. Counsel for accused. In such crossexamination, witness stated that it took about 2 minutes in recording the DD. ASI Dharampal was present at PS. He denied the suggestion that the DD entry is ante timed and antedated.
4.7 PW7 Dr Yudhvir Singh deposed that he was a summoned witness. He had seen the MLC no. 4365/12 dated 17.11.2012 of injured Rukhsana W/o Sh. Rahim prepared by Dr. Rakesh Verma who had opined the nature of injury as grevious. Dr. Rakesh Verma had left the hospital and his present whereabouts was not known. He was identifying his signature at Point A and B on the abovesaid MLC Ex PW7/A as he had seen Dr. Rakesh writing and signing during my ordinary course of duty.
FIR No. 623/2012 PS Narela State Vs. Shamshad Page 9 of 334.8 PW8 Dharampal deposed that on 17.11.2012, he was posted at PS Narela as SI. On receipt of DD no. 98B, he along with Ct Rajender reached at JJ Colony, Bawana where he found a tempo bearing no. DL 1LJ 9882, green colour in accidental condition. No eye witness could be found. It was informed from nearby that the injured had already been taken to MB Hospital, pooth Khurd, thereafter, he left Ct Rajender at the spot and he reached at MB Hospital where he received MLC no. 4366/12 of Jamshed. On that time, the doctor had reserved his opinion on the said MLC. The injured were fit for statement. He recorded statement of Ruksana Ex PW8/A. Therefore, he prepared the rukka at spot Ex PW8/B bearing his signature at Point A and handed over the same to Ct Rajender for registeration of FIR. Accordingly, he went to PS and got the FIR registered. Thereafter, he came back at the spot along with copy of FIR and original rukka and handed over the same to him. He inquired from the public persons nearby the spot about the driver of abovesaid tempo but in vain. Thereafter, he recorded statement of PCR official ASI Brij Lal. Thereafter, seizure memo of offending vehicle was prepared Ex PW8/C bearing his signature at Point A. Thereafter, the case property was deposited in the maklhana of PS Narela and recorded statement of Ct Rajender in this regard.
On 19.11.2012, he recorded statement of Jamshed and FIR No. 623/2012 PS Narela State Vs. Shamshad Page 10 of 33 prepared site plan at his instance Ex PW8/D bearing his signature at Point A and offending vehicle was got inspected and information was sought from the RTO about the owner of offending vehicle. Thereafter, notice U/s 133 MV Act already Ex PW1/A and U/s 91 CrPC is Ex PW 8/E bearing his signature at Point A were served upon owner of offending vehicle Phool Babu.
On 27.11.2012 accused Shamshad was arrested vide arrest memo Ex PW8/F bearing his signature at Point A. Witness stated that accused was released on police bail. Seizure memo of documents of offending vehicle was prepared Ex PW8./G bearing his signature at Point A. The accused was found driving without any commercial licence, therefore, Section 3/181 was added in Charge sheet.
On 01.12.2012, the offending vehicle was released on superdari by the Hon'ble Court. Thereafter, the result on MLC as 'grevious injury' was received. Therefore, Section 338 IPC was added in the chargesheet.
On 09.01.2023, he recorded DD no. 56B regarding Section 146/196 MV Act & 5/180 MV Act against Phool Babu and a Kalandra was prepared in this regard. The said Kalandra was Ex PW 8/H bearing his signature at Point A. Thereafter, the investigation of the present case was transferred from me. Therefore, he submitted FIR No. 623/2012 PS Narela State Vs. Shamshad Page 11 of 33 the case file to MHC(R).
Therefore, witness was crossexamined by the Ld. Counsel for accused. In such crossexamination, witness stated that he left the PS at about 7.50 pm along with Ct Rajender for the spot on his private vehicle. The distance between the spot and the PS is about 6 Km. It took about 20 minutes to reach the spot. The spot was a market place where public persons were passing through. At the hospital, no independent eye witness was found. He made inquiry from the shopkeepers at the spot but written notice was served to the said shopkeepers to join the investigation. Firstly, he recorded the statement of Rubina. He returned to spot at about 11.15 pm from hospital. Ct Rajender left for PS for registration of FIR at about 11.35 pm and returned to the spot with FIR at about 1.00 am next day. He prepared tehrir at the spot itself at footpath. He had not shown the place of preparing tehrir in the site plan, however, he had shown the passage of vehicles in the site plan. He denied the suggestion that he prepared the site plan on his own without verification from any witness. He prepared the tehrir, seizure memo and site plan at the spot. Vol. Site plan was prepared on the next date. he did not prepare the seizure memo of key of tempo. He recorded the statement of complainant Jamshed at his house. Injured did not meet me after 19.11.2012. Again said, injured had come to PS on 27.11.2012 when FIR No. 623/2012 PS Narela State Vs. Shamshad Page 12 of 33 accused arrested at his instance. He had not applied for TIP of accused. He denied the suggestion that he did not conduct the investigation in fair manner or that all the documents were prepared while sitting at PS or that accused was falsely implicated in the present case.
4.9 PW9 SI Arun Dagar deposed that on 06.04.2013, he was posted as SubInspector at PS Narela. On that day, the present case was marked him for further investigation on the direction of the SHO. Thereafter, he received the present case and started the investigation. During the investigation, he recorded the statement of the owner of offending vehicle bearing registration no. DL1LJ9882, model Champion. He also recorded the statement of victim namely Ruksana. He also collected the xray report of victim namely Ruksana from Mahavir Valmiki Hospital. He conducted the investigation on different aspects and prepared the chargesheet. After completed the chargesheet, same was filed before Hon'ble Court for judicial verdict.
Thereafter, witness was crossexamined by Ld. Counsel for accused. In such crossexamination, witness stated that he admitted that the accused was neither interrogated nor arrested by him in the present case. It also admitted that offending vehicle was FIR No. 623/2012 PS Narela State Vs. Shamshad Page 13 of 33 neither seized nor seen by him. It is also correct that at the time of recording the statement of complainant namely Ruksana no independant/neighbour was called. It admitted that no opinion from the concerned doctor was taken by him of the injured Ruksana. The statement of the vicitim Ruksana was recorded on 16.06.2013 at her house at about 34 PM. He remained at the house of the complainant only about 2025 minutes. It admitted that complainant/victim was neither interrogated nor was called for join the investigation in the case. He recorded the statement of owner of the offending vehicle on 05.05.2013 at PS Narela. Nothing was done except recording of the abovementioned statement. He voluntarily stated that he filed the DAR in the present case. He denied the suggestion that all the documents and proceedings were done while sitting at the PS. He denied the suggestion that he did not record the any other witneses except abovementioned witness. He denied the suggestion that no such accident was occurred and the accused was falsely implicated in the present case to fill the lacuna of the incident.
4.10 PW10: Retired ASI/Tech Devender Kumar deposed that on 19.11.2012, he had conducted the mehnical inspection of vehicle bearing registration no. DL 1LJ 9882 on the request of ASI Dharampal at PS Narela. During the inspection found front wind FIR No. 623/2012 PS Narela State Vs. Shamshad Page 14 of 33 screen glass broken and vehicle was found fit for road test and thereafter, he prepared the inspection report and the same was exhibited as Ex. PW10/A bearing his signature at point A. Thereafter, Witness was crossexamined by Ld Counsel for accused. In such crossexamination, witness stated that He denied the suggestion that no such damage were found. He further denied the suggestion that vehicle was not in accidental condition.
4.11 PW11 ASI Rajender deposed that on 17.11.2012, he was posted as constable at PS Narela. On that day, he along with IO ASI Dharampal were on Emergency duty and his duty hours was 8AM to 8PM. On that day, IO received the DD Entry no. 98B which was already exhibited as Ex. PW6/A regarding the accident. On the said information, they went to JJ Colony, Bawana, Delhi there, they saw and found one champion bearing registration no. DL 1LJ 9882 at the spot and they also came to know that injured already shifted to MV Hospital through PCR. Thereafter, he remained at the spot and the IO went to the hospital. Thereafter, IO came back to the spot and prepared a tehrir which was already exhibited as Ex PW8/B and sent to the PS Narela through him for the registration of FIR. After registration of FIR, he came back to the spot with original rukka and FIR No. 623/2012 PS Narela State Vs. Shamshad Page 15 of 33 copy of the FIR and same was handed over to IO. And, thereafter, IO seized the offending vehicle bearing registration no. DL 1LJ 9882 via seizure memo which was already exhibited as Ex. PW8/C bearing my signature at point B. Thereafter, he along with the IO ASI Dharampal with the case property went to the PS Narela and there case properties were submitted with the Malkhana and IO recorded his statement. Witness stated that he can identify the case property if shown to him. Witness further stated that four photographs of offending vehicle bearing registration no. DL 1LJ 9882 were already exhibited as Ex. P1 (Colly) in the testimony of PW1 were shown to the witness from the judicial file and same were correctly identified by the witness.
Thereafter, witness was crossexamined by Ld. Counsel for accused. In such Crossexamination, witness stated that he did not remember for how much long, he remained at the spot. he did not remember at what time IO prepared the tehrir. Prior to written the tehrir by the IO, IO prepared site plan only and no other documents was prepared. He did not remember at what he reached at the spot after registration of the case along with copy of FIR and tehrir. He did not remember what documents were prepared by the IO after reaching at the spot along with copy of FIR except seizure memo. He also did not remember at what time, he finally left the FIR No. 623/2012 PS Narela State Vs. Shamshad Page 16 of 33 spot. His statement was recorded at the PS on 17.11.2012. The statement of PCR was also recorded by the IO in the PS. He denied the suggestion that he along with the IO had not visited the spot. He further denied the suggestion that accused was falsely implicated to fill the lacuna in the present case. He further denied the suggestion that all the documents and the proceedings were done while sitting at the PS. 4.12 PW12 ASI Rajesh deposed that on 18.11.2012, he was posted as a MHC(M), CP, PS Narela. On that day, he received a vehicle i.e. tempo bearing no. DL1LJ 9882 (offending vehicle) and deposited in the Malkhana of PS. The tempo was received by him from ASI Dharampal. He made a Entry in register no. 19 at serial no. 663 on page no 237. He brought that register in which he made DD Entry (OSR) and photocopy was marked as Mark PW12/A. Thereafter, Witness was crossexamined by Ld. Counsel for accused. In such crossexamination, witness stated that he denied the suggestion that the case property was received by him from the IO which was antetime and antedated that is why he did not any signature from IO ASI Dharampal.
5. Prosecution evidence was closed on 23/04/2022 and FIR No. 623/2012 PS Narela State Vs. Shamshad Page 17 of 33 matter was listed for statement of accused U/S 313 Cr.P.C and same was recorded on 02/05/2022.
Statement of Accused
6. After recording the prosecution evidence all the incriminating facts and evidence were put before the accused and he pleaded that he is innocent. Hefurther pleaded that he was falsly implicated in the case and all the witnesses are interested witness. Lastly he said that he does not want lead any evidence.
Issues to be decided
7. Before proceeding further, as per mandate laid down under Section 354 (1) (b) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
(1). Whether accused Shamshad has committed the offence for rash driving or riding on a public way under section 279 IPC ?
(2). Whether accused Shamshad has committed the offence causing grievous hurt by act endangering life or personal safety FIR No. 623/2012 PS Narela State Vs. Shamshad Page 18 of 33 under section 338 IPC?
(3). Whether accused Shamshad has committed the offence driving a motor vehicle without holding a valid driving license in any public place under section 3/181MV Act?
Court's observation
8. "Whether accused Shamshad has committed the offence for rash driving or riding on a public way under section 279 IPC ?"
Let us peruse the provision of Section 279 IPC, which is as under : Section 279 Rash driving or riding on a public way 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.
Essentials Ingredients of Section 279 IPC FIR No. 623/2012 PS Narela State Vs. Shamshad Page 19 of 33 (1). Driving or riding in a public way (2). Such driving or riding must be rash or negligent to the point of endangering human life or causing harm or injury to others.
The Hon'ble Supreme court in the case titled Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 observed that:
"A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
The Hon'ble Supreme court further observed that Ravi Kapur (supra);
"The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a FIR No. 623/2012 PS Narela State Vs. Shamshad Page 20 of 33 public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others."
9. "Whether accused Shamshad has committed the offence causing grievous hurt by act endangering life or personal safety under section 338 IPC?"
Let us peruse the provision of Section 338 IPC, which is as under : Section 338: Causing grievous hurt by act endangering life or personal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with impris onment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
Essentials Ingredients of Section 338 IPC (1). Accused did an act rashly or negligently.
(2). Act endangered human life or the personal safety of others.FIR No. 623/2012 PS Narela State Vs. Shamshad Page 21 of 33
(3). Such act cause grievous hurt.
10. "Whether accused Shamshad has committed the offence driving a motor vehicle without holding a valid driving license in any public place under section 3/181MV Act?"
Let us peruse the provision of Section 3/181 MV Act, which is as under : Section 3: Necessity for driving license: (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than 1[a motor cab or motor cycle] hired for his own use or rented under any scheme made under subsection (2) of section 75] unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which subsection (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
Section 181: Driving vehicles in contravention of section 3 or section 4: Whoever drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
FINDINGS FIR No. 623/2012 PS Narela State Vs. Shamshad Page 22 of 33
11. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
12. In the present case the charge for the offence U/s 279/338 IPC has been framed against accused. Before appreciating the evidence, let us first discuss relevant legal provisions given under Indian Penal code. In the present case, prosecution is required to prove the following ingredients to establish the guilt of the accused FIR No. 623/2012 PS Narela State Vs. Shamshad Page 23 of 33 for the offences punishable under section 279/338 IPC that:
(i) That an accident was caused with a particular vehicle.
(ii) That accused was driving that particular vehicle which caused the accident.
(iii) That grievous hurt to any person must have been accused;
(iv) and it must have been caused by rash or negligent act/driving of the accused.
Establishment of identity of accused and offending vehicle
13. For establishing the identity of accused and offending vehicle, prosecution had examined the PW2 Mohd. Jamshed, who stated to be accompanying the accused at the time of accident. He stated in his examination in chief that the accused was driving the said vehicle and he was sitting beside the accused in the said vehicle. Vehicle met with an accident at about 7:30 PM. Accused was driving the vehicle in fast and rash and negligent manner. Due to said driving, the accused hit his vehicle against a lady and public person gathered at the spot. Further he has correctly identified the offending vehicle. However, in his cross examination this witness deposed that the driver was driving the said vehicle in normal speed and the spot was crowded area. The time of incident is about 7:30 PM and one FIR No. 623/2012 PS Narela State Vs. Shamshad Page 24 of 33 pedestrian lady was coming on the wrong side and due to said accident, she fell down on the road. He could not tell whether she sustained injuries or not. This witness again crossexamined by Ld. APP for the state and then he stated that accused was driving the vehicle at a normal speed.
From the testimony of PW1 court reach at the conclusion that prosecution successfully establish the identity of the accused as well as the identity of the offending vehicle. Further, it is also establish that at the time of the accident accused Shamshad was driving the offending vehicle and this fact also affirmed by the testimony of PW1 Sh. Phool Babu who stated in his testimony that in reply of notice served upon him under section 133 MV Act, he stated that accused Mohd. Shamshad was driving the vehicle at the relevant time. So, these facts are sufficient prove that the accused Shamshad were driving the offending vehicle at the time of incident.
Interested Witness
14. The accused has taken the defense in the final argument that all the witnesses are the interested witness. However, As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now wellsettled that a related witness cannot be said to be an "interested" witness merely by virtue of being a FIR No. 623/2012 PS Narela State Vs. Shamshad Page 25 of 33 relative of the victim. A witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused. However, in the present case, court did not find that any witness is interested witness because all the witnesses are known to the accused himself specifically PW1 and PW3 who are the owner of the offending vehicle and the person who was accompanying the accused respectively at the time of incident.
However, the Hon'ble Supreme Court has held in Rajesh Yadav and Others etc. vs. State of U.P. in Criminal Appeal No. 339340of 2014 decided on 04/02/2022, that a related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. When the court is convinced with the quality of the evidence produced, notwithstanding the classification as relative or interested witness, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact.
The aforesaid position of law has been well laid down in FIR No. 623/2012 PS Narela State Vs. Shamshad Page 26 of 33 Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:
"32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], Vivian Bose, J. for the Bench observed the law as under: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
33. In Masalti v. State of U.P., (1964) 8 SCR 133 : AIR 1965 SC 202 : (1965) 1 Cri LJ 226] , a fiveJudge Bench of this Court has categorically observed as under: (AIR pp. 209210, para 14) FIR No. 623/2012 PS Narela State Vs. Shamshad Page 27 of 33 "14. ... There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
35. The last case we need to concern ourselves is Namdeo v. State of Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773] , wherein this Court after observing previous precedents has summarised the law in the following manner: : (SCC p. 164, para
38) "38. ... it is clear that a close relative cannot be characterized as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the FIR No. 623/2012 PS Narela State Vs. Shamshad Page 28 of 33 deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
15. This court comes to the conclusion all the witness in the present case either are known to the accused himself or the police and formal witness which cannot be said to interested witness. From the above cited judgments, this court can form the opinion that a witness who is the relative of the deceased cannot be indeed interested or partisan witness because court finds no reason as to why the complainant falsely implicate an innocent person when he or she does not derive any benefit from getting him punished by the court of justice.
Other infirmities
16. Site Plan: The site plan is a vital part of the investigation and that it should give a clear description of the spot to which it belongs. Site plan is not a mere formality, but, it is an essential feature in order to reach the firm conclusion by the court in order to ascertain whether the offence has been committed by the accused or not. The site plan must disclose the relevant thing and it must corelate/corroborate with other evidence and the testimonies of the witnesses. In the present case PW8 IO SI Dharampal stated in testimony that he had prepared the site plan at the instance of the FIR No. 623/2012 PS Narela State Vs. Shamshad Page 29 of 33 PW2 Mohd. Jamshed and same was Ex. PW8/D. On perusal of the site plan unveil that this vital piece of evidence was not signed by the PW2 at whose instance same was prepared or by any other public persons.
17. Not conducting the inquiry in the office near the spot: Upon the perusal of the cross examination PW8, it comes to the notice of the court that IO stated in his cross examination that he made enquiry from the shopkeepers at the spot but written notice was not served to the said shopkeeper to join the investigation. From perusal of the testimonies of the witness it is clear that the spot was the market and crowded area despite that no other independent witness has been cited by the prosecution.
However, In State of State of A.P. vs. S.Rayappa & Ors. (2006) (4) SCC 512, the Supreme Court has rejected a similar argument of interested witnesses being produced and no independent witness being examined by the prosecution, by holding as under
"7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy crossexamination. In such a situation, the only natural witness available to the FIR No. 623/2012 PS Narela State Vs. Shamshad Page 30 of 33 prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously."
Circumstantial evidence
18. Circumstantial evidence is the most important aspect to decide the liability of the accused in any criminal trial. Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. When no other conclusive evidence is present to establish the liability of the accused, the prosecution shall rely upon the circumstantial evidence corroborating with other evidence. However, the circumstantial evidence must be of conclusive tendency and must create a chain of event or evidence which only pointed towards the guilt of the accused and left no other probability in favor of accused.
In Sharad Birdhi chand Sarda v. State of Maharashtra (1984) 4 SCC 116 153, the Apex court has observed about the FIR No. 623/2012 PS Narela State Vs. Shamshad Page 31 of 33 circumstantial evidence that:
"(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be established':
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty:
(iii)The circumstances should be of a conclusive nature and tendency:
(iv)They should exclude every possible hypothesis except the one to be proved and;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probably the act must have been done by the accused".
CONCLUSION
19. It is the settled principle of criminal jurisprudence that the prosecution required to prove its case beyond all reasonable doubt. This follow from the cardinal principle that accused is presumed to be innocent unless proved to be guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. The case in hand was stand upon the testimony of PW2 Mohd. Jamshed who stated to be lone eye witness of the case.
FIR No. 623/2012 PS Narela State Vs. Shamshad Page 32 of 33In a case of motor accident, it is most pertinent to establish the identity of the accused as well identity of offending vehicle and that the accused was driving the vehicle in rash and negligent manner. In the present case, PW1 Mohd. Jamshed successfully establish the identity of the accused and the offending vehicle, however, from his testimony it cannot be completely establish that the accused was driving the vehicle in rash and negligent manner. On a consideration of the totality of factors pleaded by prosecution and the accused, this court reach on the conclusion that prosecution has failed to establish the fact that the accused was driving the vehicle in rash and negligent manner.
20. In view of the above discussions, the accused Shamshad is hereby acquitted for the charges under Section 279/304A Indian Penal Code but held convicted for the offence U/s 3/181 M.V. Act.
Digitally signedDictated & Announced in Open Court. by JITENDER JITENDER Date: 2023.01.28 16:15:39 +05'30' (Jitender) MM01/North/Rohini/Delhi 28.01.2023 FIR No. 623/2012 PS Narela State Vs. Shamshad Page 33 of 33