Delhi District Court
State vs . Pramod Kumar on 28 June, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST
SAKET COURTS, NEW DELHI
FIR No.69/2006
P.S. Defence Colony
U/s 279/338/337 IPC
State Vs. Pramod Kumar
JUDGMENT :
a. Sl. No. of the case : 254/5
b. Date of Institution : 02.06.2006
c. Date of Commission of Offence : 10.02.2006
d. Name of the complainant : Shamshad Hussain
S/o Mia Jaan
e. Name of the accused and his : Pramod Kumar
parentage and address S/o Ram Singh
R/o H.no.A25, Sanwal
Nagar, New Delhi
f. Offence complained of : U/s 279/338/337 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 28.06.2013
i. Final Order : Acquitted
j. Date of such order : 28.06.2013
1. The accused in this case was sent up for trial for the commission of FIR NO. 69/2006 PAGE 1 OF PAGE 12 PS DEFENCE COLONY offence u/s 279/338/337 IPC.
2. The facts in brief as per the prosecution story are that on 10.02.2006, the complainant namely Shamshad Hussain along with his friend namely Mobin was coming on a motorcycle bearing no. DL3SAG7102 from Okhla side and going towards Defence Colony. At around 3.45 p.m., when they reached near the crossing of A141, Defence Colony, in the meanwhile accused came in a car bearing no. DL2CAC2882 make Wagon R and hit against the motorcycle of the complainant due to which the complainant along with his friend fell down on the road and received grievous injuries. The another injured Mobin received simple injuries. The accused was apprehended at the spot itself. Both the injured were removed to the hospital. Thereafter on the basis of statement of complainant, IO prepared the rukka and got the present case FIR registered in PS. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested. After completing other formal investigation the challan was presented before the court for trial u/s. 279/338/337 IPC against the accused.
3. The accused appeared in the court and he was informed of the substance of the allegation against him, vide notice dated 26.10.2006 under section 279/338/337 IPC to which accused pleaded not guilty and claimed trial.
FIR NO. 69/2006 PAGE 2 OF PAGE 12 PS DEFENCE COLONY
4. To prove its case the prosecution has examined nine witnesses namely HC Sukhvir as PW1, T.U. Siddiqui as PW2, Shamshad Hussain as PW3, Rajeev Nagpal as PW4, Ct. Surender Nagpal as PW5, Ct. Surender Singh as PW6, Ajit Singh as PW7, SI Nizamuddin Khan as PW8 and Mohd. Mobin as PW9.
5. PW1 HC Sukhvir has testified that on 10.02.2004, on receipt of rukka through Ct. Surender, he recorded the present case FIR which is Ex. PW1/A. Accused did not prefer to cross examine PW1.
6. PW2 T.U. Siddiqui has testified that on 12.02.2006, he had inspected the Wagon R car bearing no. DL2CAC2882 and Bajaj motorcycle bearing no. DL3SAG7102 vide report Ex. PW2/A and 2/B. Accused did not prefer to cross examine PW2 also.
7. PW3 Shamshad Hussain has testified that on 10.02.2006, at around 3.45 p.m., he was going from Okhla Vihar to Defence Colony on a motorcycle on which he was pillion rider and Mobin was driving the said motorcycle at a speed of 2025 km/hr. PW3 further testified that they were at A141, Defence Colony Chauraha when WagonR car no. 2882 which was being driven at a very fast speed and negligent manner, hit against one bike due to which they both fell 25 feet away. Mohd. Mobin received injuries. He broke his leg and due to which plates were put. After four months, he was again operated. PW3 FIR NO. 69/2006 PAGE 3 OF PAGE 12 PS DEFENCE COLONY further testified that the car had come out from the colony at a very fast speed while they were on the main road. They were taken to AIIMS hospital. PW3 further testified that the accused present in the court was apprehended by the labourers working in a building at the spot.
In his cross examination, PW3 has testified that on the left side and the right side of the road, construction work was going on. PW3 further testified that around 3040 public persons gathered at the spot after the accident. PW3 further testified that they were removed to the hospital by the PCR van. Police had recorded his statement at AIIMS hospital.
8. PW4 Rajeev Nagpal has testified that he is the registered owner of vehicle bearing no. DL2CAC2882 i.e. Maruti Wagon R and he took the said vehicle released on superdari vide superdaginama Ex. PW4/A. Accused did not prefer to cross examine PW4.
9. PW5 Ct. Surender Nagpal has testified that on 10.02.2006, on receipt of a call of accident, he along with ASI Nizamuddin went to the spot i.e. A141, Defence Colony where they found two vehicles in an accidental condition i.e. Maruti Wagon R bearing no. DL2CAC2882 and motorcycle bearing no. DL3SA7102. PW5 further testified that they came to know that the injured had been sent to AIIMS hospital. IO left him at the spot and he himself went to AIIMS hospital and after sometime IO came back to the spot along with rukka which he took to FIR NO. 69/2006 PAGE 4 OF PAGE 12 PS DEFENCE COLONY the PS and got the case FIR registered. PW5 further testified that both the vehicles were seized by the IO along with the DL of accused and he was arrested and his personal search was conducted in his presence. Accused did not prefer to cross examine PW5.
10. PW6 Ct. Surender Singh has testified that on 10.02.2006, on receipt of DD no.37B, he along with ASI Nizamuddin reached the spot at A141, Defence Colony where they found a car bearing no. DL2CA2882 and a motorcycle bearing no. DL3SAG7102 in an accidental condition. They inquired from the public persons and came to know that the injured had already been taken to the AIIMS hospital by the PCR Van. PW6 further testified that he remained at the spot and IO/ASI Nizamuddin went to the AIIMS hospital. After sometime IO came back to the spot and prepared rukka vide Ex. PW6/A and handed over the same to him for the registration of FIR and he got the FIR registered. PW6 further testified that IO seized both the vehicles vide seizure memo Ex. PW6/B and 6/C. IO prepared the site plan in his presence vide Ex. PW6/D. In the meantime, accused present in the court also came to the spot and IO had arrested the accused and conducted his personal search vide memos Ex. PW6/E and F. In his cross examination, PW6 has testified that DD entry was made regarding his departure with the IO on the day of accident. PW6 further testified that public persons were present at the spot but he did not know whether IO had joined them in the investigation or not.
FIR NO. 69/2006 PAGE 5 OF PAGE 12 PS DEFENCE COLONY 11. PW7 Ajit Singh, Record Clerk, has testified that the MLC of
Shamshad Hussain and Mohd. Mobin were prepared by Dr. Parvez and the said MLCs are Ex. PW7/A and 7/B respectively.
12. PW8 SI Nizamuddin Khan has testified that on 10.02.2006, on receipt of DD no.37B, he along with Ct. Surender reached the spot i.e. A Block, Defence Colony where they found one WagonR car and one motorcycle bearing no. DL3SAG95 lying in an accidental condition. On inquiries at the spot, it is revealed that the injured had already been shifted to the hospital. Thereafter on receipt of the information from AIIMS hospital, he reached there and found two injured persons namely Shamshad and Mohd. Mobin over there. PW8 further testified that he collected the MLCs of both the injured persons and recorded the statement of Shamshad. Thereafter he came back at the spot and made endorsement on the said statement and prepared rukka vide Ex. PW8/A and sent the rukka to the PS through Ct. Surender for the registration of FIR. PW8 further testified that he prepared the site plan vide memo Ex. PW6/D. Thereafter he seized both the said vehicles vide seizure memo Ex. PW6/B and 6/C. Thereafter he had arrested the driver of the said Wagon R vide arrest memo Ex. PW6/E and personal search of accused was carried out vide memo Ex. PW6/F. He seized the DL of accused vide memo Ex. PW8/B. PW8 further testified that he had recorded the statement of other injured Mohd. Mobin at the spot.
FIR NO. 69/2006 PAGE 6 OF PAGE 12 PS DEFENCE COLONY
13. PW9 Mohd. Mobin has testified that on 10.02.2006, he was coming with his associates Shamshad Hussain on his bike bearing no. DL3SAG7103 from Okhla. They were going to Defence Colony and it was around 3.45 p.m., while on their way when they reached the crossing in the area of PS Defence Colony. A Wagon R car bearing no. 2882 came from the West side. PW9 further testified that the driver of the offending vehicle was either hopeless or might have been drunk as they were going slowly but after driving the said vehicle at a speed of 7080 kmph at the crossing, struck against the left side of their bike. PW9 further testified that as a result of impact, they were thrown at a distance of around 20ft. along with the bike. PW9 further testified that the said Wagon R was being driven by the accused namely Pramod Kumar present in the court. PW9 further testified that Shamshad Hussain received injury on his leg as a result of which he broke his leg and he received injuries on his left leg and head. The offending vehicle was made to stop by some public persons working nearby. Police was informed. PCR came and they were shifted to AIIMS hospital.
PW9 was cross examined by Ld. APP as he was not revealing the complete facts. In his cross examination PW9 has testified that police recorded his statement. PW9 further testified that he had told the police that after driving the vehicle with high speed and in a rash and negligent manner, the accused struck their motorcycle resulting in injuries to both of them.
In his cross examination, PW9 has testified that as soon as the accident FIR NO. 69/2006 PAGE 7 OF PAGE 12 PS DEFENCE COLONY occurred, he fell on the right side. PW9 further testified that he have had a fleeting glimpse of the accused, the driver of the Wagon R as he had sustained injury. PW9 further testified that he was not aware of the name of the driver earlier and he came to know from through police that the offending vehicle was being driven by one Pramod Kumar and when the case started, he came to know that one Pramod Kumar was facing trial as a driver and that's why he had identified him as the driver. PW9 further testified that at the time of accident, he could not properly see the driver because of the injuries. PW9 further testified that he could not tell with surety that accused was the driver who had caused the accident. PW9 further testified that he was not sure about the speed of the WagonR as 7080kmph. PW9 further testified that the spot is a heavily crowded area and nobody can drive the vehicle at a fast speed in such a crowded place. PW9 further testified that he could not tell about the manner of negligence of accused. PW9 was reexamined by Ld. APP. In his reexamination, PW9 has testified that he had given the statement that the accused was driving the vehicle in a high speed and rash and negligent manner because he did not know the meaning of rash and negligence at the time of his examination in chief.
14. After closing of prosecution evidence, statement of the accused was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code, 1973. In his statement, accused denied to have committed the offence and claimed to has been falsely implicated in this case. He further denied FIR NO. 69/2006 PAGE 8 OF PAGE 12 PS DEFENCE COLONY to lead any defence evidence.
15. I have heard the arguments of Ld. APP for the State as well as Ld. Counsel for the accused and have also perused the entire record.
16. The accused has been charged with the offence u/s 279 and 338/337 of IPC. The combined reading of these sections would show that a rash or negligent act is one of the essential ingredients which is required to be proved by the prosecution to establish the charge. While section 279 IPC renders punishable an act of rash or negligent driving which is dangerous to human life or limb, the same act would attract punishment u/s 338/337 IPC if indeed it results into injury to some person.
17. The term negligence has been defined by the Supreme Court in Mahadev Prasad Kaushik vs. State of UP(2009)2 SCC (Cr) 834 as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. Besides, such negligence as would justify a verdict of conviction must be culpable or of gross degree and not the negligence founded on a mere error of judgment or defect of intelligence. Rashness can be summed up as an act which is reckless or is done in a manner which is dangerous to public life. The mere fact that an accident has taken place or some persons have received injuries will FIR NO. 69/2006 PAGE 9 OF PAGE 12 PS DEFENCE COLONY not lead to any presumption of rash or negligent act on the part of the accused but will have to be established like any other fact. The injury so caused is not the determining factor. In a case under sections 338/337 and 279, of the IPC, there must be a definite finding that the driving was rash or negligent which resulted in the injury of the victim. Accused cannot be held guilty unless it is explained in what manner the accused was rash or negligent.
18. To prove its case against the accused, the prosecution has examined two eye witnesses namely PW3/Shamshad Hussain and PW9/Mohd. Mobin who suffered injury in the accident. In his testimony, PW9 has not specified the manner in which the offending vehicle was being driven. He has only stated that the offending vehicle was being driven by the accused in a rash and negligent manner and at a speed of 7080kmph and struck against their motorcycle due to which they fell down and they got injured. In his cross examination, PW9 has failed to identify the accused as the driver of the offending vehicle. He has deposed that he was not aware of the name of the driver earlier and came to know through police that the offending vehicle was beind driven by accused Pramod Kumar. He has further deposed that at the time of accident, he could not properly see the driver because of the injuries. He has further deposed that he was not sure about the speed of the offending vehicle.
19. PW3/Shamshad Hussain on whose statement the FIR was lodged, has FIR NO. 69/2006 PAGE 10 OF PAGE 12 PS DEFENCE COLONY also not specified as to how the accused was rash or negligent. He has merely stated that the accused was driving the vehicle in a fast speed and in a rash and negligent manner without specifying as to what was the speed of the offending vehicle. In Jitender Singh Vs State (2012 (1) JCC 7), the High Court of Delhi acquitted the accused observing that the eye witness could not tell at what speed the accused was driving the vehicle and only stated that he was driving the vehicle in high speed. In a case under section 279/338 of IPC, rash or negligent is the material ingredient of the offence and the same has not been proved in the present case.
20. Further, in his cross examination, PW3 has deposed that on the left side and right side of the road, construction work was going on. He has further deposed that around 3040 public persons gathered at the spot and accused was apprehended by the labourers working on a building at the spot. PW9 has also deposed that the offending vehicle was made to stop by some public persons working nearby. However none of the public persons or labourers have been made a witness by the Investigating Officer of the case.
21. In these circumstances, it cannot be said with certainity that the accused has caused the accident on account of rash and negligent act. It may be a mere error of judgment or defect of intelligence.
22. In the result, I find that Prosecution has failed to prove its case against FIR NO. 69/2006 PAGE 11 OF PAGE 12 PS DEFENCE COLONY the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Pramod Kumar is acquitted for the offence punishable U/s. 279/338/337 IPC for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 28.06.2013 Metropolitan Magistrate
South East/New Delhi
FIR NO. 69/2006 PAGE 12 OF PAGE 12
PS DEFENCE COLONY
FIR No.69/2006
PS Defence Colony
u/s 279/338/337 IPC
28.06.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 279/338/337 IPC for which he stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/with one surety in the like amount. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/28.06.2013
FIR NO. 69/2006 PAGE 13 OF PAGE 12
PS DEFENCE COLONY