Delhi District Court
Front Wheel Mudguard Damaged vs State" Crl. Rev. Petition on 25 July, 2016
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Abhimanyu Malik
FIR No. 923/2004
PS Paschim Vihar
U/s 279/338 IPC
JUDGMENT
Case No. : 68726/16
Date of Institution : 30.06.2005
Date of Commission of Offence : 10.11.2004
Name of the complainant : Rajesh Rai
S/o Village Rahinabad, Chai Bagan
PS Samatla, District Jalpaigudi
West Bengal.
Name & address of the accused : Abhimanyu Malik
S/o Jitender Singh
R/o D-116, Kumwar Singh Nagar
Nangloi, Nilothi, Delhi.
Offence complained of : 279/338 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date on which reserved for judgment : 11.07.2016
Date of announcing of judgment : 25.07.2016
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 279/338 Indian Penal Code, 1860.
State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar
2. The briefly stated story of the prosecution is that on 10.11.2004, the accused Abhimanyu Malik s/o Jitender Malik was was driving a scooter bearing no. DL3SM-4077 (hereinafter referred to as 'The Scooter') in a rash and negligent manner so as to endanger human life and personal safety of others. At about 1.25 pm, when he reached Rohtak Road in front of gate no.2, Udyog Nagar, he hit one pedestrian Dilwar Hussain @ Raja with his scooter due to which the pedestrian fell down and sustained grievous injuries. The accused was driving the said vehicle without any valid driving license. FIR was lodged and investigation was carried out. Thus, the accused is alleged to have committed an offence under Section 279/338 Indian Penal Code,1860 and Section 3/181 Motor Vehicles Act 1988.
3. Charge sheet was filed against the accused in the court. Copy of charge-sheet and other scruttable documents were supplied to the accused in compliance of Section 207 Cr.P.C. Notice under Section 251 Criminal Procedure Code was served upon the accused for offence under Section 279/338 Indian Penal Code, vide order dated 18.08.2006 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined six witnesses i.e (1) Dilwar Hussain (2) Ravi Mahajan (3) Dr. Om Prabha (4) ASI Surender Singh (5) HC Ram Chander (6) SI Mohd. Mushtaq.
5. PW-1 Dilwar Hussain deposed that on 10.11.2004 he along with Rajesh Rai was working at Action Shoes Factory, Camp no.4, Jawalapuri, New Delhi. At State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar about 1.30 p.m. after taking lunch, he along with Rajesh Rai were coming back to the factory. When they were crossing the road, one scooter, being driven in a rash and negligent manner, hit him from the back side. The witness fell down and sustained injuries. He identified the accused as the rider of the said scooter. Police reached at the spot and took him to Balaji Action hospital.
6. Since the witness failed to tell the registration number of the offending scooter, a leading question was put to him by the Ld. APP. On being asked by the Ld. APP, whether the registration number of the vehicle is DL3SM-4077, witness answered in affirmative. The witness also identified the scooter and same was exhibited as Ex.P1. The witness was not cross examined by the accused despite opportunity.
7. PW-2 Ravi Mahajan is the registered owner of the scooter. He deposed that the accused was driving the said scooter on the date of incident. He was informed about the accident by the accused's father on the same day. He got the scooter released on superdari vide superdarinama Ex.PW2/A. Photographs of the scooter are Ex.P2 to P4.
8. PW-3 Dr. Om Prabha had medically examined the injured Dilwar Hussain and prepared his MLC which is Ex.PW3/A. As per the MLC, the nature of injury was grievous.
9. PW-4 ASI Surender Singh deposed that on 10.11.2004 he had registered the present FIR on basis of the rukka sent by IO SI Mohd. Mushtaq through Ct.
State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar Ram Chander. Copy of FIR is Ex.PW4/A and his endorosement on rukka is Ex.PW4/B.
10. PW-4 HC Ram Chander deposed that on 10.11.2004 he was on emergency duty from 8.00 to 8.00 p.m. A call was received by IO SI Mohd. Mushtaq regarding the accident at about 1.30 p.m. They reached the spot and found the scooter lying in accidental condition. IO left for Action Balaji Hospital. He returned to the spot after some time along with witness Rajesh Rai. IO recorded his statement and prepared the rukka. Witness took the rukka to PS Paschim vihar and got the FIR registered. He returned to the spot and handed over the original rukka and copy of FIR to the IO. During cross examination, he denied the suggestion that he had not joined the investigation in the present case.
11. PW-6 SI Mohd. Mushtaq deposed that on 10.11.2004 he reached at the spot on receiving DD No.21 along with Ct. Ram Chander. He left Ct. Ram Chander at the spot and proceeded to Balaji Action Hospital. Both the injured Dilawar Hussain and the accused were found admitted there. One eye witness Rajesh Rai was also present there. He recorded the statement of Rajesh Rai. Same is Ex.PW6/A. Injured Dilwar Hussain was declared unfit for statement. IO returned to the spot and prepared the rukka Ex.PW6/B. He directed Ct. Ram Chander to get the FIR registered. He prepared the site plan Ex.PW6/C and seized the said scooter vide memo Ex.PW6/D. On the next day, he moved an application for mechanical inspection of the scooter. Same is Ex.PW6/E. The mechanical State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar inspection report of the scooter is Ex.PW6/F. He served the notice under Section 133 MV Act, Ex.PW6/G upon the owner of the scooter. The owner produced the accused at PP Mianwali Nagar. The accused was arrested vide memo Ex.PW6/H. He recorded the statement of injured. After completion of the investigation, he filed the charge-sheet in the court.
12. During cross examination, he admitted that he had collected the MLC of the accused also, however the same in not on judicial record. He voluntarily stated that the MLC of the accused is in the police file. As per his memory, the nature of the injury was dangerous. He had not recorded any statement or disclosure statement of the accused. He admitted that he had not taken the photographs of the spot. He admitted that in the site plan, no zebra crossing was shown at any place. He admitted that the injured was not crossing the road using Zebra crossing or any place earmarked for crossing the road by pedestrian. He denied the suggestion that the injured was hit by some other vehicle and has been falsely implicated in this case.
13. Vide his separate statement, the accused admitted the genuineness of MLC NO.414/04 along with X-ray report and mechanical inspection of vehicle no.DL3SM-4077 under Section 294 Cr.P.C. Accordingly, name of PW Dr. Alok Dhar and Technician Devender were dropped from the list of witnesses.
14. Since the complainant Rajesh Rai remained unserved with the report that he has expired during the trial, his name was dropped from the list of witnesses.
State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar
15. The prosecution evidence was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. He admitted that he was riding the scooter on the alleged date, time and place. However, he denied that he was riding it in an rash and negligent manner. He admitted that the accident in question had taken place but he was hit by some other vehicle from behind and had become unconscius. He also received injuries in the present case. He also denied that he was not having any driving license at that time. He stated that his wallet was stolen when he became conscious. The accused led defence evidence and summoned the original MLC No. 415 dated 10.11.2004 pertaining to him.
16. DW-1 Parmeet Kaur, Senior Medical Record Executive from Shri Balaji Action Hospital produced the MLC of accused Abhimanyu Malik which is Ex.DW1/A. In the cross examination by the Ld. APP, DW-1 stated that he could not tell whether the injuries received by the accused were in road traffic accident or not. No other witness was examined by the accused and defence evidence was closed by his statement.
17. I have heard the submissions made by the Learned APP for state and Learned Counsel for accused and carefully perused the evidence and the documents on record.
18. Ld. APP for State has submitted that the prosecution has proved its case beyond reasonable doubt and the accused is liable to be convicted for the State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar alleged offence.
19. Per contra, Ld. Counsel for accused has submitted that the prosecution has failed to prove its case. He has submitted that the testimony of PW-1 cannot be read in evidence as he was not cross examined by the accused. He has further submitted that even the accused had received injuries in this case as he was hit by another vehicle from behind.
20. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
21. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
22. In "State of H.P. v. Piar Chand", AIR 2004 SC 1636, Hon'ble High court of Himachal Pradesh, while dealing with the meaning of the expression "rashness" and "negligence" held as follows :
State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar "18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
23. In the case at hand, the accused has admitted that he was riding the scooter at the relevant date, time and place. He has also admitted that the accident in question had taken place. Hence, the only question to be decided by this court is that whether the accident in question was caused by the rash and negligent driving of the accused and whether PW-1 Dilawar Hussain had been grievously hurt due to the rash and negligent act of the accused.
24. The star witness of the prosecution is PW-1 Dilawar Hussain being the injured.
PW-1 has categorically stated that when he was crossing the road, the scooter came in a rash and negligent manner and hit him from back side. However, the contention of the Ld. Counsel for accused is that the testimony of this witness cannot be read in evidence as the accused never got an opportunity to cross State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar examine him, even though his application under Section 311 Cr.P.C was allowed.
25. Perusal of the record transpires that PW-1 was examined in chief on 16.04.2012. On that day, the accused was present in the court. However, he did not seek any adjournment for cross examining the said accused. On 26.02.2013 the accused moved an application under Section 311 Cr.P.C for recalling PW-1 which was allowed subject to a cost of Rs.500/-. However, PW-1 failed to appear despite service and warrants were executed against him. However, even the bailable warrants issued against the witness remained unexecuted through DCP concerned. As such, PW-1 could not be cross examined by the accused due to non-availability of the witness.
26. The court agrees with the contention of the Ld. Counsel that it is a settled principle of law that the testimony of witness cannot be read in evidence until and unless an opportunity to cross examine him has been given to the accused. However, as per Section 33 Indian Evidence Act, the testimony of a witness can be read in evidence at a later stage of the judicial proceeding in certain circumstances. The said section is reproduced verbatim as under:-
"Section 33 Indian Evidence Act. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable.
Provided- that the proceeding was between the same parties or their representatives in interest;that the adverse party in the first proceeding had the right and opportunity to cross examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Section."
27. In view of the above mentioned provision of law. The court is of the opinion that the testimony of PW-1 can be read in evidence.
28. The next defence of the Ld. Counsel is that accused himself was hit by another vehicle from behind and it was not the accused who had caused the said accident. Ld. Counsel has also submitted that the accused had himself received State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar injuries in this case. However, perusal of the MLC Ex.DW1/A transpires that the accused was brought to the hospital with the alleged history of 'fall from scooter'. There is no history of the accused being hit by any vehicle in the MLC.
29. Further, the mechanical inspection report of the scooter Ex.PW6/F shows the following damages:-
1. Front wheel mudguard damaged.
2. Front body frame damaged.
3. Head light damaged.
4. Right side body scratched.
30. There is no damage on the scooter on the rear side so as to suggest that the scooter was hit from behind. Hence, the court is of the view that there is nothing on record to show that the scooter of the accused was hit by another vehicle from behind.
31. The testimony of PW-1 has remained uncontroverted and unchallenged as he has not been cross examined by the accused. However, PW-1 has merely stated that the accused was riding the scooter in a rash and negligent manner and hit him from behind. At this stage, it would be relevant to refer to the Judgment delivered by the Hon'ble High Court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 wherein it was held as follows, "No evidence or any other material was placed on record by State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW-10, the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
32. In the case at hand, PW-1 has only made a bald statement that the accused was riding in a rash and negligent manner. He has not described the manner in which the accident had taken taken place.
33. Further, in the site plan Ex.PW6/C, it has not been shown whether the injured was crossing the road from the Zebra crossing or from a place earmarked for pedestrians to cross the road. In "Rajesh Kumar Vs. State" Crl. Rev. Petition no.490/2008 date of decision 07.05.2012, it was held by the Hon'ble High Court of Delhi that the site plan did not indicate that the injured ladies were State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar crossing the road from a place earmarked for the pedestrians to cross the road or that there was any zebra crossing. It was also observed by the Hon'ble court that the ladies were crossing the road with heavy vehicular traffic from the middle and hence there was contributory negligence on the part of the lady. To quote the Hon'ble High court, For attracting the provisions of Section 304 A IPC, the negligent act of the accused must be culpable and gross and not merely based on an error of judgment, or the one which arises because of lack of intelligence. For holding an accused criminally liable one has to take into consideration all the attending circumstances which must also include any situation created by the negligent act of the injured person."
34. In the case at hand, Rohtak Road where the accident had allegedly taken place is a busy road and vehicles are normally at a good speed. The accident had taken place at 1.30 p.m which is not a peak hour. Hence, if a person crosses the road randomly and not using the zebra crossing, it would lead to accident as the vehicle driver would not be contemplating it.
35. Further, mere high speed of the vehicle in itself is not a rash and negligent driving. In the case titled "Abdul Subhan vs State (NCT of Delhi)" 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi as below, State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar "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 is meant by "High Speed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rest on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminally 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 loquitor."
36. The Hon'ble court further observed, "In the present case also, I find that apart from the allegation that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event there is no State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar description or approximation of what was the speed at which the truck was being driven. The expression "high speed" could range from 30 km per hour to over 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high speed, that the petitioner is a guilty of rash and negligent act. Clearly the petitioner cannot be convicted on the sole testimony of PW-3 which itself suffers from various ambiguities."
37. The Hon'ble court further observed, 13.3 As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerened by courts.
13.4 The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5 Furthermore the path of movement of the vehicles must be State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case. 13.6 ................
13.7 Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumptions, probabilities, all elements of subjectivity needs to be eliminated."
38. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
39. In the case at hand, there is no evidence on record to prove that the accused was riding the scooter in a rash and negligent manner, except the bald State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar statement made by PW-1. There are no photographs of the spot. The site plan is also vague and a mere formality.
40. In view of the above discussion and in light of above-mentioned case laws, the court is of the view that the prosecution has failed to prove its case against the accused. The prosecution has failed to prove that the accused was riding the scooter in a rash and negligent manner or that the injuries caused to the injured Dilawar Hussain due to the rash and negligent manner act of the accused. Thus he is entitled to be acquitted. Accordingly, accused Abhimanyu Malik s/o Jitender Singh is acquitted under Section 279/338 Indian Penal Code.
41. As far as the offence under Section 3/181 Motor Vehicles Act is concerned, it appears from the MLC Ex.DW1/A that the accused had received serious injuries and was unconscious. Hence, it appears probable that the wallet of the accused could have been stolen at that time.
42. In view of the above discussion, the accused Abhimanyu Malik s/o Jitender Singh is acquitted under Section 3/181 M V Act.
43. As per Section 437 A Cr.P.C, the accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED IN THE OPEN COURT ON
25th July 2016
(SAUMYA CHAUHAN)
MM-07 (West), THC, Delhi
State v. Abhimanyu Malik U/s 279/338 IPC
FIR No.923/2004 PS Paschim Vihar