Delhi District Court
State vs Mohd Nafish on 11 August, 2023
IN THE COURT OF MS. NEHA PANDEY
METROPOLITAN MAGISTRATE06, NORTH,
ROHINI COURTS,DELHI
State Vs Mohd. Nafish
FIR No. 49/2010
PS. Adarsh Nagar
U/s. 279/304 A IPC
CIS No. 5281955/2016
JUDGEMENT
1) CNR Number of the case : DLNT020002592010
2) The date of commission of offence : 25.02.2010
3) The name of the complainant : Shri Naresh Kumar
s/o Shri Lt. Sh. Bhagwan Dass
R/o B12, Kewal park,
Azadpur, Delhi.
4) The name of accused : Mohd. Nafish S/o Sh. Hanif
5) Offence complained of : u/s 279/304A IPC
6) The plea of accused : Pleaded not guilty
7) Final order : CONVICTION
8) The date of such order : 11.08.2023
Date of Institution : 03.08.2010
Judgment reserved on : 18.07.2023
Judgment announced on : 11.08.2023
FIR No. 49/2010 State Vs Mohd. Nafish 1/8
THE BRIEF REASONS FOR THE JUDGMENT:
1. The present present chargesheet has been filed by the investigating agency under Section 279/304 A IPC . It is the case of the prosecution that on 25.02.2010 at about 11:00 AM at GTK Road, near metro pillor no. 100, Sarai Pipal Thala accused was driving truck no. HR 67 8396 in rash and negligent manner so as to endanger human life or personal safety of others and on the above said ate and time and place while driving the aforesaid vehicle in the aforesaid manner and accused hit against the motorcycle No. DL 8S AN 133 being driven by deceased Rakesh Kumar S/o Sh. Pyare Lal who sustained injuries and who succumbed to his injuries and thereby accused caused death not amounting to culpable homicide and hence accused committed an offence u/s 279/304 A IPC for which the present FIR was registered against the accused.
2. After filing of chargesheet, my Ld. Predecessor took cognizance and on 03.08.2010, notice under Section 279/304A IPC on 25.04.2011 was framed against the accused to which accused pleaded not guilty and claimed trial. Thereafter, the case was proceeded for prosecution evidence
3. In support of its case, the prosecution examined thirteen witness.
4. After prosecution evidence, PE stands closed vide order dated 20.08.2022 and thereafter statement of accused recorded under section 313 Cr.P.C on 15.10.2022 in which the stand of the accused is of general denial. Accused has stated that he is innocent and has been falsely implicated in this case by the police officials. In defence evidence accused examined himself as FIR No. 49/2010 State Vs Mohd. Nafish 2/8 DW1.
5. Thereafter, the matter was fixed for final arguments.
6. Arguments on behalf of the accused had been advanced by Sh.H.G.R. Khattar and Shri Shrawan Babu, Ld. APP on behalf of the State. I have also perused the record carefully. In order to decide the present case, the prosecution evidence is examine herein under two board headings:
PRESENCE OF ACCUSED AT THE SPOT
7. I have heard the arguments and perused the record. So far as the question of presence of the accused at the spot of accident is concerned, the same is not disputed by the defence. The accused in his statement u/s 313 Cr.P.C. as well as his testimony as DW1 have admitted that the offending vehicle bearing no. HR 67 8396 was being driven by him and thus, for the sake of brevity the testimony of the eye witness is not discussed as both the eye witness PW4 Naresh Kumar and PW7 Karan Sharma have correctly identified the accused as driving the offending vehicle and also the accused was arrested on the spot by the public.
RASH AND NEGLIGENCE IN DRIVING
7. In order to prove the rash and negligence in driving of the accused the prosecution has examined Two independent witnesses PW4 and PW7 and their testimonies are of relevance to prove the said point. PW 4 Naresh Kumar stated in his testimony that on 25.02.2010 he was going on his motorcycle along with PW7 Karan Sharma who was a pillion rider and the deceased was FIR No. 49/2010 State Vs Mohd. Nafish 3/8 riding ahead of them on his motorcycle bearing no. DL 8S AM 1332. It is stated by the witness that at about 11 AM when they reached near Tayagi Hospital Sarai Peepal Thala the offending vehicle came from behind in a very high speed and overtook his motorcycle and hit the motorcycle of the deceased Rakesh Kumar as a result, the deceased fell down on the road and the truck ran over him. During crossexamination by the defence counsel, the witness denied the suggestion that the accident took place when the deceased entered the road from Shah Alam Bano Road. The witness further stated that the offending vehicle came from behind and hit the motorcycle on the right side. The witness denied the suggestion that there was an auto ahead of the deceased motorcycle and deceased motorcycle waived towards the truck to avoid hitting the said auto. The witness also denied the suggestion that there was a DTC bus going parallel with the offending vehicle at the time of accident.
The other important witness who is also the eye witness to the present accident is PW7 Karan Sharma and the witness also stated in his testimony that the driver of the offending vehicle while turning towards his left side hit the deceased motorcycle as a result of which the deceased fell on the road and came under the wheels of the offending vehicle and the offending vehicle was being driven in a fast speed. The tetstimony of the PW7 Karan Sharma remained unrebuted as despite opportunity he was not crossexamined by the defence as per the order of this court dated 20.08.2022.
The accused examined himself as DW1 to show that the present FIR No. 49/2010 State Vs Mohd. Nafish 4/8 accident did not occur due to any fault on his part. He stated in his examination in chief that he was driving in his lane in a less than required speed and the deceased motorcyclist came from behind and tried to overtake his vehicle from the left side(wrong side) and as a result he waived his motorcycle in such a way that his leg guard brushed against the spare wheel and the motorcyclist fell down and after driving 150 mts, somebody informed him that the motorcyclist has fallen down on the road that is when he stooped his vehicle.
During crossexamination by the Ld. APP, the accused admitted that he was having rear view mirror on both the sides and he also admitted that he did not stop his vehicle even when the deceased waived towards his truck. He failed to tell the name or the number of the auto rikshaw which was present there and he admitted that there were scratches on the deceased motorcycle.
9. From the evidence and the documents placed on record, it is clear that accused Mohd. Nafish S/o Mohd Hanif was driving the offending vehicle bearing no. HR 67 8396 on 25.02.2010 and due to his rash and negligent driving, he caused the death of deceased Rakesh. The PW4 and PW7 as discussed above have clearly stated that the offending vehicle came from behind and in order to overtake, it hit the deceased's motorcycle as a result of which the deceased fell on the ground and came under the wheels of the offending vehicle. The accused himself in his testimony as discussed above as he admitted that he saw the motorcycle waiving and trying to overtake the FIR No. 49/2010 State Vs Mohd. Nafish 5/8 auto which was ahead of the deceased's motorcycle but as per the site plan Ex. PW13/B there is no auto is shown ahead of the motorcycle. Also the defence has failed to bring on record any oral or documentary evidence to show the presence of the auto ahead of the deceased's motorcycle. Also, the defence has suggested that a bus was being driven parallel to the offending vehicle but no evidence has been led by the defence to prove the said fact also. The site plan Ex. PW13/B do not show the presence of any bus. The accused in his testimony DW1 also did not talk about any bus being driven parallel to his offending vehicle. The mechanical inspection report of the deceased motorcycle which is Ex. PW11/A shows the scratch mark and bent on the right side of the motorcycle and thus the testimony of PW4 and PW7 than the offending vehicle was being driven at a high speed and it tried to overtake the motorcyclist finds corroboration with the scratch marks found on the right side of the motorcycle. The accused clearly admitted in his testimony that he saw the deceased fall down but he kept driving, this fact itself shows the negligence on the part of the accused as any prudent person while seeing someone fell on the ground should have stopped his vehicle to check the person concerned but the accused admittedly did not stop rather he stopped only after being called by someone from behind. Had the accused stopped his vehicle on the right time, may be the deceased could have survived and could have escaped coming under the wheels of the offending vehicle. The mechanical inspection report of the offending vehicle Ex. PW11/B also shows that there were scratch marks on the steeping wheel of the offending vehicle FIR No. 49/2010 State Vs Mohd. Nafish 6/8 and thus clearly, the accused was not driving his vehicle in his lane and he even did not stop after seeing the deceased fell on the ground as a result of his overtake of the motorcycle. The perusal of the site plan Ex. PW13/B which has not been disputed by the defence, also shows that the offending vehicle was being driven in the middle of the road at point D and the deceased motorcycle and the body were lying at point A which is around 18.1 feet from the road and thus clearly the offending vehicle was not being driven in his lane that is the extreme left lane which is meant for driving of heavy vehicle like the present offending vehicle. If we believe the story of the accused that he was driving his vehicle in his left lane this court fails to understand how there were scratch marks on the left side of the stephy wheel of the offending vehicle and the right side of the deceased motorcycle. It is only possible when the offending vehicle overtook the deceased motorcycle from left and as a result he hit the deceased on the right side of deceased motorcycle and the said motorcycle hit the left stephy wheel of the offending vehicle which is the case in the present matter as it appears from the testimony of PW4, PW7 and perusal of site plan Ex. PW13/B and mechanical inspection reports PW11/B and PW11/A. The defence of accused can not be admitted by this court without any corroboration as the PW4 and PW7 have clearly in their respective testimony stated how present accident occurred due to fault of accused and this court see no good reason to doubt the testimony of the said two witnesses.
10. In view of the above discussion the prosecution has clearly FIR No. 49/2010 State Vs Mohd. Nafish 7/8 established that the offending vehicle was being driven in a rash and negligent manner by the present accused which caused the death of the deceased and thus the accused Mohd. Nafish S/o Mohd. Hanif is accordingly convicted for offence under Section 279/304 A IPC which he has been charge with.
Announced in open court (NEHA PANDEY)
on 11th August 2023 MM6/North District
Rohini Courts/Delhi, 11.08.2023
FIR No. 49/2010 State Vs Mohd. Nafish 8/8