Delhi District Court
State vs Dharambir on 24 September, 2024
IN THE COURT OF SH. P. BHARGAV RAO, JMFC-03, WEST, THC, DELHI
DLWT020018162015
STATE VS. DHARAMBIR
FIR NO. 171/2014
PS: Nihal Vihar
U/S: 279/304A IPC & 471 IPC.
ID No. : 62408/2016
Date of commission of offence : 12.03.2014 with respect to offences u/s
279/304A IPC and 13.03.2014 with respect to
offence u/s 471 IPC.
Date of institution of the case : 06.02.2015
Name of the complainant : SI Sudershan Vats
Name of accused and address : Dharambir S/o Sh. Mahender Singh, R/o H. No.
A-76, New Guru Hari Kishan Nagar, Nilothi
Ext., Chander Vihar, Delhi.
Offence complained of or proved : U/s 279/304A/471 of IPC.
Plea of the accused : Pleaded not guilty
Final order : Acquitted for offences u/s 279/304A IPC
however, convicted u/s 471 IPC.
Date of judgment : 24.09.2024
State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 1/19
JUDGMENT
01. The case of the prosecution in brief is that on 12.03.2014 at about 08:30 p.m. at in front of Gurudwara, Avchal Nagar, Ganda Nala, Nihal Vihar, Delhi within the jurisdiction of PS Nihal Vihar, the accused was driving tempo bearing registration No. DL 1LK 7277 in a rash and negligent manner as to endanger human life and personal safety of others and thereby you committed an offence punishable u/s 279 IPC and on the abovementioned date, time and place in the aforesaid manner accused caused death of Bhagwan Dass not amount to culpable homicide and thereby accused committed an offence punishable u/s 304A IPC. Further, accused on 13.03.2014, accused was found in possession of forged and fabricated licence which accused was fraudulently and dishonestly using the same as genuine one having knowledge or reason to believe that the same is forged document / DL and thus accused thereby committed an offence punishable u/s 471 IPC within the cognizance of this court.
02. After completion of necessary formalities, charge sheet was filed in this Court. Cognizance was taken. The accused was summoned. Charge was framed against the accused, to which he pleaded not guilty and claimed trial.
03. PROSECUTION EVIDENCE In order to substantiate its case, prosecution has examined 08 witnesses. The testimony of all the witnesses are reproduced hereunder for ready reference and the relevancy and admissibility of said testimony will be dealt with at the later part of the judgment :
04. Statement of PW 1 HC Manoj Kumar :
"In the intervening night of 12/13.03.2014 I was posted at PS Nihal Vihar as Duty State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 2/19 officer, and my duty hours were from 00.00 am (night) to 08.00 am . On that day, at about 01:45 am, Ct. Nitin Kumar handed over the rukka to me sent by SI Sudarshan Vats. On the basis of which I got registered FIR Ex.PW1/A. The FIR was got registered through computer installed at PS Nihal Vihar. The said computer was under my lawful control at that time and the FIR Ex.PW1/A was registered on the basis of tehrir. The computer was being used in routine manner for similar purpose. After registration of FIR Ex.PW1/A, print out of the same was obtained running in two pages bearing my signatures at point A. Nothing adverse took place so as to affect the correctness of the information so fed in the computer. I also made endorsement on rukka which is EX. PW1/B bearing my signature at point A. Another print of FIR Ex. PW1/A was also obtained which was tagged in the FIR register as per rules. I have brought the same, it is compared and return. After registration of FIR, I handed over the original rukka with copy of FIR to Ct. Nitin Kumar to be handed over to IO SI Sudarshan Vats for further investigation. Certificate under Section 265B qua FIR is on record, Ex.PW1/C, bearing my signature at point 'A'." He was duly cross-examined by the Ld. counsel for the accused.
05. Statement of PW 2 Dr Manoj Dhingra :
"On 13.03.2014, I was posted at SGM Hospital as in-charge mortuary. On the said day, I conducted the post mortem on the dead body of male of Bhagwan Dass aged about 62 years vide post mortem report No. 246/14 which is Ex.PW2/A bearing my signature at point 'A' (4 pages). The cause of death in the said case was due to the craniocerebral damage as a result of blunt force impact and all the injuries were ante mortem in nature and possible in manner as alleged." He was not cross-examined despite opportunity given.State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 3/19
06. Statement of PW 3 Sh. Govind :
"I am the registered owner of vehicle bearing registration number DL-1LK-7277 involved in the present matter. On 13.03.2014, I received a notice under Section 133 M.V. Act through SI Sudarshan Vata PS Nihal Vihar who told me the said vehicle involved in road accident of present case and has been seized by police. I have replied the said notice vide Ex.PW3/A, bearing my signature at point 'A'. I have told to the police that on 05.02.2014, I had sold the said vehicle to Sh. Ram Jatan S/o Sh. Dugru R/o E-2, Raghubir Nagar, Delhi. In this regard, I had submitted photocopy of receipt, same is mark-A. I had handed over the original of the same to Ram Jatan. At the request of Ram Jatan, I had got released the said vehicle on superdari by executing the superdarinama Ex.PW3/B, bearing my signature at point 'A'. At the time of receiving the above said vehicle from malkhana, I had submitted the photographs of the vehicle. The seven photographs placed on record of aforesaid vehicle are shown to the witness, witness correctly identified the vehicles in photographs. The photographs are Ex.P-1 (colly)." He was duly cross-examined by the Ld. counsel for the accused.
07. Statement of PW 4 Sh. Prem Chand :
"In the year 2014, I was doing job. On 12.03.2014, at about 08:30 - 09:00 pm, when I was returning to my home from my job, when I reached in the middle of the Ganda Nala, I saw one Tempo/Vikram bearing registration number DL.... 7277 was coming at a very high speed and in a rash and negligent manner, hit the scooty (white colour Activa) and ran its Vikram over the scooty. The scooty skid with the Vikram for some distance and rider got injured due to the same. The driver of the Vikram ran away from the spot leaving its Vikram there. I also went to my house from the spot. After some time, my friend called me and told me that his father had met with an accident. I went to PS Nihal Vihar, the driver of the offending Vikram was also present there. I identified him as the driver of the Vikram which caused the accident of Scooty. I told State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 4/19 this fact to the IO. IO arrested accused vide arrest memo Ex.PW4/A and conducted his personal search vide memo Ex.PW4/B, both bearing my signatures at point 'A'. Accused present in the court today (correctly identified by the witness). Thereafter, I along-with the IO went to the spot and IO prepared site plan at my instance, Ex.PW4/C, bearing my signature at point 'A'. IO recorded my statement in this regard. Later on, the injured got expired. I can identify the offending as well as victim vehicle, if shown to me. At this stage, witness is shown photographs. Witness has correctly identified 5 photographs belonging to the offending Tempo/Vikram which caused the accident. The photographs are already Ex.P-1 (colly) and the offending Vikram is Ex.PX-1. Witness has also correctly identified 3 photographs belonging to the victim scooty which was hit by the offending Tempo/Vikram. The photographs are Ex.PW4/D (colly) and the victim scooty is Ex.PX-2. Further, he was asked leading questions by the Ld. APP for the State wherein he deposed that it is correct that the complete registration number of the offending Tempo/Vikram is DL-1LK-7277. It is correct that the registration number of the victim scooty is DL-8SBK-5132." He was duly cross-examined by the Ld. counsel for the accused.
08. Statement of PW 5 Retd. ASI / Tech Sh. Devender Kumar :
"I am qualified grade-I mechanic and I have done specialized courses/training from ITI and various vehicle manufacturing companies. I have experience about 35 years in this field. On 14.03.2014, I mechanically inspected Honda Activa Scooty bearing registration number DL-8SBK-5132 on the request of SI Sudarshan Singh of PS Nihal Vihar. After conducting the mechanical inspection, I prepared my detailed report in this regard, the same is Ex.PW5/A, bearing my signature at point 'A'. During mechanical inspection, I found fresh damages on front body damaged from right side, front body cover damaged, front body frame damaged, head light and speedo meter damaged, handle system damaged, and left side body scratched and vehicle was not fit State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 5/19 for road test, after accident. On that day, I also mechanically inspected Tata Ace Tempo bearing registration number DL-1LK-7277 on the request of SI Sudarshan Singh of PS Nihal Vihar. After conducting the mechanical inspection, I prepared my detailed report in this regard, the same is Ex.PW5/B, bearing my signature at point 'A'. During mechanical inspection, I found fresh damages on front side body safety guard, right side portion scratched and slightly bended, front fiber body broken from right side and front right side body frame damaged, driver door window damaged and front wind screen glass broken and said vehicle was fit for road test, after accident. I can identify the offending as well as victim vehicle of which I conducted the mechanical inspection, if shown to me. Witness is shown photographs available on the judicial file. Witness has correctly identified 6 photographs belonging to the offending Tempo of which the mechanical inspection was conducted by him. The photographs are already Ex.P-1 (colly) and the offending Tempo/Vikram is Ex.PX-1. Witness is shown photographs available on the judicial file. Witness has correctly identified 5 photographs belonging to the victim scooty of which the mechanical inspection was conducted by him. The photographs are already Ex.PW/D (colly) and the victim scooty is already Ex.PX-2." He was duly cross-examined by the Ld. counsel for the accused.
09. Statement of PW 6 Ms. Ritu Aggarwal :
"I am working as Sr. Asstt, RTO at Agra, U.P. and today I brought the summoned record of license no.45176 and today, I am authorized by Sh. Anil Singh, ARTO, Agra, U.P. I have brought the original record of register bearing no.75 of the year 2008 of RTO Agra and the register carry the original record of295 licenses issued by the above said authority from S.No.45057 to 45620. The required details of the license bearing registration number 45176 is at page no.120 of the above said register and the copy of the same is now taken on record, Ex.PW6/A (OSR) along-with the authority letter (running into three pages). As per the record, the license no.45176 was issued to one State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 6/19 Kanta Prasad S/o Sh. Chander Bhatt." He was duly cross-examined by the Ld. counsel for the accused.
10. Statement of PW 7 Ct. Nitin :
"On 12.03.2014, I was posted as Ct. on emergency duty at PS Nihal Vihar. On that day, my duty hours were from 8.00 p.m. to 8.00 a.m. At about 9.35 p.m., IO/SI Sudershan have received the call regarding accident vide DD No. 79B dated 12.03.2014. Thereafter, I along with IO/SI Sudershan went to place of occurrence of accident i.e. Ganda Nala near Gurudawara, Afjal Nagar, Nihal Vihar, where we found that two accidental vehicles i.e. one Tempo bearing registration no. DL-7277 and another Activa Scooty bearing registration no. DL-5132. We came to know the fact that the injured persons were taken to unknown hospital through PCR. Thereafter, IO/SI Sudershan received a call vide DD No. 95B regarding admission of the injured/victim at SGM Hospital. Thereafter, IO/SI went to the above-mentioned hospital for further investigation and left me at the spot. Thereafter, at about 1.15 a.m. (midnight), IO returned to the spot of the accident. Thereafter, IO handed over me one Tehrir for registration of FIR and thereafter, I went to PS for registration of FIR. Thereafter, I came back at the spot along with copy of FIR and original rukka and the same was handed over to the IO at the spot. Thereafter, IO had taken some photographs through his own mobile phone. Thereafter, both the above-mentioned vehicles were taken to PS Nihal Vihar through crane. Thereafter, we came to know about the fact that the injured/victim had expired and I along with the IO went to SGM Hospital at about 9.00 a.m. Thereafter, postmortem of the injured/victim was conducted at SGM Hospital. After postmortem, body of the injured/victim was handed over to his family members. Thereafter, we returned to PS. IO enquired about the ownership details of the above- mentioned alleged offending vehicle i.e. Tempo and notice U/s 133 of M.V. Act was served upon the owner of the alleged offending Tempo. Govind along with Ram Jatan State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 7/19 & Dharambir (Driver) had come to PS where Govind mentioned that he had already sold the alleged offending Tempo Ram Jatan. Thereafter, the said Ram Jatan produced the relevant documents of the vehicle such as RC, Insurance & Fitness Certificate and the said Ram Jatan also told us that on the date of incident, his driver Dharambir was driving the offending Tempo. The notice U/s 133 of M.V. Act and statement of the said Govind & Ram Jatan are already Ex. PW-3/A. One person namely Prem Chand had accompanied the family members of the deceased Bhagwan Das and told the IO that he is the eye-witness of the case and had seen the accused Dharambir whilst commission of the offence. Statement of the said Prem Chand was also recorded by the IO of the case which is now marked as Mark-X. Thereafter, the accused Dharambir was arrested & personally searched by the IO of the case vide memos, which are already Ex. PW-4/A & PW-4/B respectively, both bearing my signatures at point B. DL of the accused/driver of the offending vehicle was seized vide seizure memo, which is Ex. PW-7/A bearing my signatures at point A. RC, Insurance & Fitness Certificate of the offending vehicle i.e. Tempo were seized vide seizure memo, which is Ex. PW-7/B bearing my signatures at point A. The accused is present before the court & correctly identified by the witness."
He was duly cross-examined by the Ld. counsel for the accused.
11. Statement of PW 8 Retd. SI Sudershan Vats :
"On 12.03.2014, I was posted as SI at PS Nihal Vihar. On that day, I along with Ct. Nitin were on night emergency duy from 8.00 p.m. to 8.00 a.m. At about 9.31 p.m., I have received the call regarding accident vide DD No. 79B dated 12.03.2014 which is Mark-8A. Thereafter, I along with Ct. Nitin went to place of occurrence of accident i.e. Ganda Nala near Gurudawara, Afjal Nagar, Nihal Vihar, where we found that two accidental vehicles i.e. one Tempo bearing registration no. DL-1L-7277 and another Activa Scooty bearing registration no. DL-8S-5231. No eye-witness was found at the spot and driver of the abvoe-said Tempo was not present there. Thereafter, I received a State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 8/19 call vide DD No. 95B regarding admission of the injured/victim at SGM Hospital and copy of the said DD number is Mark-8B. Thereafter, I went to the above-mentioned hospital for further investigation and left Ct. Nitin at the spot. I had collected the MLC of the injured namely Sh. Bhagwan Das and the concerned Doctor had declared the said injured Bhagwan Das as brought dead in the said MLC. No eye-witness was also found at the said hospital. Thereafter, I returned to the spot and no eye-witness was also found there. I prepared the rukka which is Ex. PW-8/A bearing my signatures at point A. Thereafter, I handed over the rukkar for registration of FIR to Ct. Nitin and thereafter, Ct. Nitin went to PS for registration of FIR. Thereafter, Ct. Nitin came back at the spot along with copy of FIR and original rukka and the same was handed over to me at the spot. Thereafter, I had taken the photographs of the spot & case property through his own mobile phone. I had seized the above-said Tempo & Activa Scooty vide seizure memo, which is Ex. PW-8/B & Ex. PW-8/C both bearing my signatures at point A. Thereafter, both the above-mentioned vehicles were taken to PS Nihal Vihar through crane. I along with the Ct. Nitin went to SGM Hospital. I had recorded the statement of witnesses regarding identification of the dead body and statements are already Ex. A-1 & Ex. A-2 both bearing my signatures at point A. Thereafter, postmortem of the injured/victim was conducted at SGM Hospital. After postmortem, body of the deceased was handed over to his family members vide handing over memo, whihc is already Ex. A-3 bearing my signatures at point A. Thereafter, we returned to PS. Owner of the above-said Tempo namely Govind, Ram Jatan and the accused Dharamvir were found present in PS Nihal Vihar. Notice U/s 133 of M.V. Act was served upon the owner of the said offending Tempo. While applying the above-said notice, Govind mentioned that he had already sold the alleged offending Tempo to Ram Jatan and produced the photocopy of the receipt of money which is already Mark-A. Thereafter, the said Ram Jatan produced the relevant documents of the vehicle such as RC, Insurance & Fitness Certificate and the said documents were seized by me vide seizure memo, which is State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 9/19 already Ex. PW-7/B bearing my signature at point B. The said Ram Jatan also told us that on the date of incident, his driver Dharambir was driving the offending Tempo and the same was written by Ram Jatan on the back side of notice U/s 133 of M.V. Act and the same is Mark-8C. Notice U/s 133 of M.V. Act is already Ex. PW-3/A bearing my name at point B. In the meantime, 3-4 relatives of the deceased Bhagwan came to PS and out of them, one person namely Prem Chand had told to me that the boy namely Dharambir was sitting there was driving the above-said Tempo and I had seen the accident and thereafter, I went away from there and later on, he came to know that the deceased Bhagwan Das was his relative. I had prepared the site plan of the spot at the instance of Prem Chand vide site plan memo which is already Ex. PW-4/C bearing my signatures at point A. I recorded the statement of eye-witness namely Sh. Prem Singh U/s 161 of Cr.P.C. I had arrested the accused vide arrest memo, which is already Ex. PW-4/A bearing my signature at point C. The accused was released on police bail. I had got conducted the mechanic inspection of the above-said both vehicles and obtained the mechanical inspection reports from the mechanical expert namely Sh. Devender Kumar and recorded his statement in this regard. Thereafter, I had given the application/notice for verification the DL of the accused Dharambir to Agra Transport Authority but the entry of the DL of the accused was not found there. My the above-application is Ex. PW-8/D bearing my signature at point A and the concerned authority had given the reply of the said application/notice on the back side of the same. Thereafter, I had added the Section 471 of IPC against the accused Dharambir. After completion of investigation, I prepared the charge-sheet and same was filed before the court. The accused is present before the court & correctly identified by the witness. 7 photographs of the above-said Tempo are shown to the witness, who correctly identified the same and the said photographs are already Ex. P-1 (Colly). 5 photographs of the above-said Activa Scooty are shown to the witness, who correctly identified the same and the said photographs are already Ex. PW-4/D (Colly)]. It is correct that registration number of the above-said State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 10/19 Tempo is DL-1LK-7277 and registration number of Activa Scooty is DL-8SBK-5132. It is correct that DL of the accused was seized by me vide seizure memo, which is already Ex. PW-7/A bearing my signatures at point B. It is further correct that I had conducted personal search of the accused vide personal search memo, which is already Ex. PW- 4/B bearing my signatures at point C." He was duly cross-examined by the Ld. counsel for the accused.
12. Thereafter, statement of accused U/s 294 Cr.P.C. recorded on 27.07.2018 and on 04.11.2022 wherein he admitted genuineness of documents without admitting the contents thereof. Thereafter, statement of accused u/s 313 of Cr.P.C. was recorded, wherein all the incriminating facts were put to the accused. Accused submitted that he was innocent and he was not driving the said vehicle at any point of time, however, Ram Jatan used to drive the said vehicle. He was falsely implicated in the present matter in the connivance of Ram Jatan with police officials. He did not use any driving licence. Accused opted not to lead defence evidence.
13. In regard the foregoing, here it would be relevant to reproduce the said provisions as under;
"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.
"304-A. Causing death by negligence-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 11/19 with fine, or with both."
"471. Using as genuine a forged [document or electronic record].- Whosoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."
14. In order to sustain the conviction, the prosecution is required to prove that the driver of the offending vehicle was driving the same in a rash or negligent manner. In fact, it is a settled law that unless said 'key ingredient' is proved beyond reasonable doubt, no criminal liability can be attributed to the accused. There must be proof that the rash or negligent act of accused was the proximate cause of the death and there must be a direct nexus between the death of a person and the rash or negligent act of the accused. In this regard, reference is made to the decision of the Hon'ble High Court of Delhi in Ras Bihari Singh v. State (NCT of Delhi), 2017 SCC Online Del 12290, wherein the Hon'ble Court in this context inter alia observed as under;
"9. To constitute an offence under Section 279 IPC, it must be shown that the person was driving the vehicle in a rash or negligent manner. Criminal negligence or criminal rashness is an important element of the offence under Section 279 IPC.
15. In a road accident case, to convict a person for the offence punishable under Section 304-A IPC, the prosecution is required to bring on record the basic requirement of the said Section i.e. "Rash or Negligent Act" with following conditions:
1) There must be death of the person in question;
2) that the accused must have caused such death; and
3) that such act of the accused was rash or negligent and that it did not amount to culpable homicide.State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 12/19
16. Section 304A which deals with unintentional death caused by doing any rash or negligent act of the offender. The applicability of this Section is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. To bring an offence within the ambit of Section 304A, the prosecution is required to bring on record that the act was done by an accused and the death was caused due to rash and negligent act."
17. It is settled law that merely driving a vehicle with high speed does not denote driving the vehicle rashly and negligently. The Hon'ble Supreme Court in State of Karnataka v. Satish, (1998) 8 SCC 493, observed as under:
"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness"
by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 13/19 the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."
18. Further, the Hon'ble High Court of Delhi in Ram Chander v. State, 2017 SCC Online Del 11763, in the similar context held as under;
"13. In a road accident case, to convict a person for the offence punishable under Section 304-A IPC, the prosecution is required to bring on record the basic 7 Reference also made to the decision of the Hon'ble High Court of Delhi in; Abdul Subhan v. State (NCT of Delhi), 2006 SCC OnLine Del 1132.
19. From the conspectus reading of the above judgements, it is clear that to constitute an offence under Section 279 IPC, it must be shown that the person was driving the vehicle in a rash or negligent manner. Criminal negligence or criminal rashness is an important element of the offence under Section 279 IPC. Mere fact that the accused was driving the vehicle at high speed may not attract the provisions of Section 279 IPC and the prosecution is required to bring on record such negligence and rashness. High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding rashness or negligence on the part of the driver.
20. The prosecution had to prove that collusion was entirely or at least mainly due to the rashness or negligence on the part of the petitioner who was driving the vehicle. At this stage, it is further pertinent to note that the superior courts have persistently cautioned regarding drawing of any presumption of rashness or negligence merely for the reason of occurrence of a fatal accident or for the reason of demise of an innocent person in road accident. In fact, not only is any such presumption, not envisaged under law, rather, the same cannot absolve the prosecution of proving the basic ingredients of the offences under Sections 279/338/304A IPC. The Hon'ble High Court of Delhi in this regard State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 14/19 in Narender v. State (Govt. of NCT of Delhi), 2021 SCC Online Del 4729, noted as under;
"In the instant case, on the mere fact that an innocent died in a road accident, the presumption of rashness and negligence against the petitioner cannot be drawn. Reference may be taken in this connection of the observation made by another Bench of this Court in State (NCT of Delhi) v. Jagbir Singh reported as 2019 SCC Online Del 8401, where it was held that:--
"It is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is a dominant factor in cases of accident."
21. At this stage, this Court further deems it apposite to also refer to the observations made by the Hon'ble Supreme Court in Shakila Khader v. Nausheer Cama, (1975) 4 SCC 122, wherein the Hon'ble Court expounded few of the factors, necessary for determining rashness and/or negligence, as under;
"6. The facts in the case speak eloquently about what should have happened. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic, and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for the eyewitness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road..."
22. Further, the Hon'ble High Court of Delhi in Kishore Chand Joshi v. State, 2018 SCC Online Del 12337, while declaring that a witness is incompetent to render an opinion as to 'rashness or negligence', observed as under;
"16. PW-2 has given his opinion about the manner of driving.
Rash and negligent manner is an opinion which may vary from State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 15/19 person to person depending on the perception of an individual. What may be "rash and negligent" for one may not be "rash and negligent" for another. For one person, driving at a speed of 80 may be high speed and rash and negligent and for another it may not be.
17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligent". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver (Ram Chander v. State, 2017 [4] JCC 2676)."
23. Furthermore, it is to be kept in mind that there is no presumption under law of rashness or negligence merely for the reason of occurrence of a fatal accident or for the reason of demise of an innocent person in road accident, which the superior courts have insistently cautioned the trial courts to be wary of when confronted with the cases/prosecution under the relevant provisions of law.
24. In the present case, the prosecution squarely relies on testimony of PW4 Prem Chand who is the eye-witness in the present case. Perusal of his examination-in-chief reveals that on 12.03.2014 at about 08:30 pm - 09:00 pm, when he was returning from his job, he saw Tempo/Vikram was coming at a very high speed and in a rash and negligent manner, hit the scooty and ran its Vikram over the scooty. The scooty skid with the Vikram for some distance and rider got injured due to the same. The driver of the Vikram ran away from the spot leaving its Vikram there. He went to his house from the spot and after some time, his friend called him and told him that his father had met with an accident. Therefore, he went to PS Nihal Vihar, where the driver of the offending Vikram was also present. He identified him as the driver of the Vikram which caused the accident of Scooty.
State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 16/1925. The conduct of the PW4 is highly suspicious as after the said accident, he did not call the police nor he tried to caught the driver of the vehicle or tried to help the victim but rather went to his house and did not inform anyone regarding the incident. The said witness went to the police only after being informed by his friend. He deposed during his cross-examination that the victim was the father of his friend whereas in his statement u/s 161 Cr.P.C., he stated that the deceased was his relative which is a clear contradiction. It is highly unlikely that he saw the accused being the driver of the offending vehicle, however, could not see the face of the deceased. Further, IO did not record the statement of the son of the witness nor did he mention his name in the list of witnesses for the best reasons known to the IO. The prosecution also did not examine Ram Jatan who told the IO that on the date of incident the accused was driving the offending tempo. Therefore, the prosecution failed to connect the dots and establish the chain of links leading to the involvement of the accused beyond reasonable doubt.
26. Further, as regards Section 471 IPC, it is the case of the prosecution that intially the FIR was registered u/s 279/304A IPC, however, on the verification of the driving licence of the accused which was seized vide seizure memo Ex.PW7/A, the same was found to be forged. Thus, Section 471 IPC was later added.
27. It is well settled law that the following ingredients are essential for Section 471 IPC :
•The document or electronic record is a forged one, wherein such forgery is done dishonestly or fraudulently to gain pecuniary or non-pecuniary benefit. •The accused made use of the forged document or electronic record as a genuine one.
•The accused knew or had a reason to believe that such document or electronic record is a forged one.
•The accused made use of the said document or electronic record in spite of State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 17/19 knowing it to be a forged one.
28. In the present case, the prosecution has examined PW6 Ms. Ritu Aggarwal, Senior Assistant RTO, Agra who had got the original record of licences issued by the said Authority who deposed that the licence no. 45176 was issued to one Kanta Prasad S/o Sh. Chander Bhatt. She was cross-examined by the Ld. counsel for the accused wherein she denied the suggestion that one could obtain DL from the said authority by just sending his photographs and need not visit personally. Further, she also denied that two or more licences could be issued of one serial number. The accused did not lead any DE to prove that the said licence was indeed issued to him or wrong licence was issued to him by the said authority inadvertently. Ld. counsel for the accused did not put any question to the IO with respect to the attesting witnesses of the seizure memo. He did not even give any suggestion in this regard. The accused in his SA also did not clarify as to how the said forged licence came to his possession.
29. Perusal of the forged licence shows that the same was issued in the name of the accused and his father's name is also mentioned as Sh. Mohinder Singh having his photograph and the seal of RTO, Agra. Therefore, it is clear that the accused was having the knowledge that the same was forged and he was using the same as genuine. Therefore, prosecution has able to prove that the accused used forged licence as genuine knowing fully well and reason to believe that the same was forged.
30. Accordingly, accused namely Dharambir is acquitted for offence u/s 279/304A IPC and convicted u/s 471 IPC.
31. Put up for sentence on 18.10.2024.
State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 18/1932. Copy of this judgement be given to the convict free of cost.
Digitally
signed by P
P BHARGAV RAO
BHARGAV Date:
Announced in the open Court, RAO 2024.09.24
19:05:30
24.09.2024 +0530
(P. Bhargav Rao)
JMFC-03 (West),THC Delhi
24.09.2024
State Vs. Dharambir FIR No. 171/14, PS Nihal Vihar Page No. 19/19