Delhi District Court
Arvind Kumar vs The State Govt Of Nct Of Delhi on 18 May, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 260/2023
CNR No. : DLST01-009115/2023
Arvind Kumar
S/o Sh. Amar Singh
R/o Village Garhi Surajmal,
PS- Tappal, District-Aligarh,
Uttar Pradesh. .........APPELLANT
VERSUS
The STATE (N.C.T DELHI) .......RESPONDENT
DATE OF INSTITUTION : 19.09.2023
ARGUMENTS HEARD ON : 28.02.2024
DATE OF JUDGMENT : 18.05.2024
JUDGMENT
1. The present appeal has been filed by the appellant against the impugned judgment of conviction dated 28.09.2022 and order on sentence dated 04.08.2023, passed by the court of Ld. MM-01, South, Saket, New Delhi, whereby he has been convicted for offences under Section 279/338/471/474 IPC. By order on sentence appellant has been sentenced to undergo simple imprisonment of one month and fine of Rs.1,000/- for offence u/s 279 IPC, six months simple imprisonment and fine of Rs.1000/- for offence u/s 338 IPC, simple imprisonment of three months and fine of Rs.10,000/- for offence u/s 471 IPC and simple imprisonment of one year Digitally for offence u/s 474 IPC. He was further sentenced to fine signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.05.18 16:59:03 of Rs.10,000/- payable as cost of prosecution to the State. +0530 CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 1 of 16
2. Along with this appeal an application for condonation of delay has been filed. The delay is of 13 days and if the same is not condoned, the very purpose of filing appeal would get defeated. I do not find any deliberate attempt on part of the appellant in avoiding the filing of appeal. The condonation application is allowed and delay stands condoned.
3. Brief facts as noted by Ld. Trial Court in the impugned order are being reproduced for the sake of convenience:-
"As per prosecution, on 30.12.2012 at about 9:15 am at Qutub Minar, Bus Stand, New Delhi within the jurisdiction of PS Mehrauli, accused Arvind Kumar was driving DTC bus bearing no. DL-1PC-7916 on a public way, in a manner so rash and negligent so as to endanger human life and personal safety of others and while driving the above said vehicle in the aforesaid manner struck against the motorcycle bearing no. DL-3SBS-2948 make Yamaha as a result of which the motorcyclist/complainant Amit Kumar sustained grevious injuries on his person. Further, the accused fraudulently or dishonestly used as genuine driving licence no. A- 901/ALI/2001/Aligarh, UP which was fake/forged and possessed the said fake DL knowing the same to be forged and intending that it will be used fraudulently or dishonestly as a genuine document and thereby committed offences under Section 279/338/471/474 of Indian Penal Code (hereinafter IPC). After completion of the investigation, a charge sheet was prepared and filed in the Court"
4. On completion of investigation, a charge-sheet was filed against the appellant herein for offences punishable under Section 279/338/471/474 IPC. After taking cognizance, the appellant was summoned and thereafter, PURSHOTTAM PATHAK Charge for offences punishable under Section Digitally signed by 279/338/471/474 IPC was framed against the appellant, to PURSHOTTAM PATHAK Date: 2024.05.18 which he pleaded not guilty and claimed trial.
16:59:09 +0530 CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 2 of 165. Prosecution produced, examined 13 witnesses in support of its case. After closing the prosecution evidence, the statement of the accused was recorded. The appellant chose not to lead defence evidence. Thereafter, final arguments were heard by the Ld. Trial Court. Accused / appellant was convicted by the Ld. Trial Court vide impugned judgment dated 28.09.2022 and order on sentence dated 04.08.2023.
6. I have heard the arguments. Perused the record.
7. Ld. LAC for appellant argued that the Trial Court has arbitrarily passed the judgment against the appellant without considering the actual facts and circumstances of the case. He further argued that the Trial Court has wrongly relied upon the fake and wrong testimony of complainant (PW-1) as it is impossible that a bus can be driven fast at the gol chakkar, Qutub Minar. He also argued that the Trial Court did not consider that the complainant did not see the driver of the vehicle and the testimony of PW-5 Subhash is based on hearsay evidence. He submitted that the statement of PW-12 ASI Satyaveer is unreliable that no eye witness was found there, as it was 9.30 in the morning and there are little chances that there was no eyewitness. He further argued that the Trial Court also did PURSHOTTAM PATHAK not consider that at the time of joining of services of Digitally signed appellant in DTC department all of his documents were by PURSHOTTAM PATHAK Date: 2024.05.18 verified. He also argued that the testimony of witnesses is 16:59:17 +0530 full of lacunaes and contradictions and the whole CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 3 of 16 prosecution case is unreliable. He argued that the prosecution has failed to prove that the accused was driving the vehicle on the date of accident in rash and negligent manner and thereby caused grievous injuries to the complainant / victim. Further, he submitted that the impugned judgment and order on sentence are liable to be set-aside and appellant/ convict is entitled to be acquitted in this case.
8. On the other hand, Ld. APP for the State has argued that the judgment passed by the Ld. Trial Court is well reasoned and no ground for setting-aside the same is made out. Prosecution has examined 13 witnesses in support of its case and the said witnesses have duly proved the prosecution case. He submitted that the appeal filed by the appellant is without merit and is liable to be dismissed.
9. Appellant has been convicted and sentenced for offences punishable under Section 279/338/471/474 IPC.
10. To bring home the culpability of accused u/s 279/338 IPC, it is pertinent to quote the relevant provisions of law. Section 279 IPC is reproduced herein below:-
"Section 279. Rash driving or riding on a public way- whoever drives any vehicle, or rides, on any public way in a manner PURSHOTTAM so rash or negligent as to endanger human life, or to be likely to PATHAK cause hurt or injury to any other person, shall be punished with Digitally signed by imprisonment of either description for a term which may extend to PURSHOTTAM six months, or with fine which may extend to 1000/- rupees or with PATHAK Date: 2024.05.18 both."
16:59:21 +0530 CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 4 of 16
11. From bare reading of this provision, the three essential ingredients which constitute the offence of rash driving on a public way are as follows:-
i. Person must be driving or riding on a public way, ii. He must be driving in a rash and negligent manner, iii. He must be driving in a manner likely to endanger human life or personal safety of any person.
12. Section 338 IPC is reproduced herein below:-
S. 338 IPC 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 imprisonment 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.
13. Perusal of these provisions makes it clear that offences u/s 279 and 338 IPC will be made out when the grievous injury is a direct consequence of a rash or negligent act. Rashness conveys the idea of recklessness or doing an act without due consideration whereas negligence connotes want of proper care.
14. In order to prove the offence u/s 279 IPC, the prosecution must establish at first the identity of the accused, that is, the fact that the accused was driving the aforementioned vehicle at the time of accident. Secondly, Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK the rashness or negligence on the part of the accused in PATHAK Date:
2024.05.18 16:59:26 driving the said vehicle. Further, in order to prove an +0530 offence u/s 338 of IPC over and above the aforementioned CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 5 of 16 facts, the grievous injury must also be proved to have been caused in the manner suggested by the prosecution.
15. As far as the identity of the offending vehicle and accused as driver of the offending vehicle is concerned, the same is established by unrebutted testimony of witnesses. Nothing has come on record to disbelieve their testimonies. The involvement of offending bus bearing no. DL 1PC 7916 and identity of accused as driver of offending vehicle is also established from the fact that both the vehicles involved in the accident were seized from the spot of the accident vide seizure memo Ex. PW-3/C and Ex. PW-3/D. The mechanical inspection report also shows damage on the offending vehicle and motorcycle.
16. Further, the fact that the appellant/ accused was driving the vehicle DL 1PC 7916 has not been disputed by him. In reply to notice framed u/s 251 Cr.P.C., the accused admitted that he was driving the offending DTC bus on the date, time and place as mentioned. He has further admitted in his statement recorded u/s 313 Cr.P.C. that on the date and time of accident, he was coming from the right side and the complainant was coming on his motorcycle from the wrong side and when he tried to apply the brake his vehicle hit the divider. He was caught by the public at the Digitally spot and from the spot he was taken by police officials to signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
the police station. Notice under Section 133 MV Act was 2024.05.18 16:59:30 +0530 also issued to the ATI Mohan Lal, who in reply stated that CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 6 of 16 accused Arvind Kumar was driving the vehicle at the time of accident.
17. Thus, it is clear that the DTC bus bearing DL 1PC 7916 was involved in the accident and the accused was driving the offending vehicle at the time of accident.
18. In the present case, X-ray reports Ex. PW-9/A and MLC Ex. PW11/A are available on the Trial Court record and the same were proved by PW-9, PW-10, and PW-11. These documents show that complainant Amit Kumar received grievous injuries in a road accident. This basic fact therefore, has to be treated as established. Whether the road accident was the result of rash or negligent driving or not has to be seen.
19. The Trial Court has dealt this issue in following manner:-
"Now let us examine the testimony of the witnesses and the material available on record to see whether the accused was driving the vehicle in rash and negligent manner and whether the accident was caused by the accused due to which the complainant sustained grievous injuries.
In the case at hand, PW-1 who is the complainant as well as the injured in the present case, in his deposition stated that on 30.12.2012 at about 09:15 am he was going towards Lado Sarai on his motorcycle bearing registration no. DL-3SBS-2948 make Yamaha from his house. When he reached near Qutub Minar Golchakkar, one DTC bus was coming from his opposite direction at a very high speed in rash and negligent manner and hit his motorcycle. Due to this impact, he fell down on the road and became unconscious. He could not see the driver of the offending vehicle as Digitally all the things happened suddenly within a moment. The accident signed by PURSHOTTAM occurred due to rash or negligent driving of the driver of the PURSHOTTAM PATHAK PATHAK Date:
2024.05.18 offending vehicle. His statement was recorded by the police in 16:59:35 +0530 AIIMS Trauma Centre.CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 7 of 16
The complainant/injured was not cross examined by the Ld. Counsel for the accused despite opportunity being given. The testimony of the complainant/injured remained unrebutted and this amounts to admission on the part of the accused regarding the fact of rash and negligent driving by him.
Further due to the rash and negligent driving of the accused, the complainant suffered grevious injury. In this regard the MLC EX. PW11/A is on record, perusal of which reveals that the complainant Amit Kumar sustained grievous injuries and the said MLC is also not disputed by the accused.
Thus from the above discussion it becomes clear that the accused was driving a DTC bus bearing no. DL-1PC-7916 on a public way in a rash and negligent manner and while driving in the aforesaid manner caused grievous hurt on the person of the complainant and thus committed offences punishable under section 279/338 IPC"
20. In order to prove the rashness and negligence on the part of the accused, the prosecution has examined PW-1 who is the complainant/ victim. He has categorically testified that on 30.12.2012, at about 9.15 am, when he was going towards Lado Sarai on his motorcycle bearing registration no. DL 3SBS 2948, at Qutub Minar Gol chakkar, one DTC bus coming from the opposite side at very high Speed in rash and negligent manner hit his motorcycle. Due to this impact, he fell down on the road and became unconscious. He also stated that the accident occurred due to rash and negligent driving of the offending vehicle.
21. It has been contended that it was not possible to drive a vehicle in fast speed at the place of incident ie. Digitally signed by Qutub Minar Gol Chakkar. However, the appellant has PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.05.18 neither cross examined the witnesses in this regard nor has 16:59:40 +0530 he brought on record any evidence in his defence that it CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 8 of 16 was not possible to drive the bus at fast speed at the place of incident.
22. Here it is pertinent to note that PW-1 was not cross examined on behalf of the accused. It is settled law that non-cross examination of a witness implies that the statement of witness has not been disputed. It was held in case of AEG Carapiet Vs. A.Y. Derderian AIR 1961 Cal 359 that :
'wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice.'
23. Thus, the effect of non-cross examination of PW-1 Amit Kumar is that his testimony has gone unrebutted and unchallenged. In fact, no prosecution witness has been cross examined on behalf of the accused. It must follow that the accused himself believed that the testimony of said prosecution witnesses could not be disputed at all.
24. It is to be noted that it is the duty of a driver of a motor vehicle to drive the same with caution and reasonable care. However, in the present case, no such care or caution was taken by the appellant as he hit the motorcycle while driving in rash and negligent manner.
PURSHOTTAM 25. In my considered opinion, the aforesaid is sufficient PATHAK to show that the incident occurred on account of rash or Digitally signed by PURSHOTTAM PATHAK negligent driving of the offending DTC Bus. There cannot Date: 2024.05.18 16:59:45 +0530 CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 9 of 16 be any two views about the same in the available circumstances.
26. From the aforesaid discussion, existence of accident, grievous injuries sustained by complainant, involvement of DTC Bus Vehicle no. UP 16E 0565, manner of driving i.e. rashness, identity of the driver i.e. accused, are all established.
27. On the aforesaid, I am of the view that ingredients of Section-279 and 338 IPC are satisfied as it was the accused who was driving the offending Bus and hit the deceased while driving the Bus in a rash manner. The appellant has been rightly convicted by the Trial Court for these offences.
28. The accused is also charged u/s 471/474 IPC.
Perusal of Section 471 IPC reveals that the offence herein pertains to the dishonest or fraudulent use of any forged document as genuine. Further, Section 474/ IPC provides for the punishment for being in possession of a document as described under Section 466 IPC, knowing it to be forged and intending it to be so used.
29. The accused was found in possession of fake forged driving licence which he was using as genuine. The Trial PURSHOTTAM Court has dealt this issue in following manner:-
PATHAK "It is to be further seen as to whether the accused was in possession Digitally signed by PURSHOTTAM of fake/forged DL, intending to use fraudulently or dishonestly as PATHAK genuine.
Date: 2024.05.18 16:59:49 +0530 CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 10 of 16 In this regard PW-7 Sh. Pramod Kumar Junior Assistant, RTO Office, Aligarh, U.P deposed that driving licence no. A- 901/Aligarh/2001 issued on 17.04.2001 does not exist in the record. As per record the driving licence no. A- 901/Aligarh/2001 issued on 28.12.1999 is in the name of Sh. Ashok Kumar. He further deposed that no driving licence was issued to the accused Arvind Kumar on 17.04.2001.
Further, PW-8 Mohd. Saleem, Record Keeper, RTO Office, Aligarh, U.P was also examined by the prosecution and he deposed after bringing on record the relevant page of register Ex. PW-8/B that on 17.04.2001, no driving licence was issued in the name of the accused Arvind Kumar.
Again there is no cross examination despite the opportunity being given to Ld. Counsel for the accused and the same goes against the accused and keeping in view the above testimony as well as the document brought on record by PW-7 & PW-8, this court has no hitch in saying that the accused was in possession of fake/forged DL and dishonestly and fraudulently used the same as genuine."
30. As to the charge for offence u/s 471 IPC, as per PW-
12, accused produced his license which was seized vide memo Ex. PW-3/C. PW-7 and PW-8 officials from RTO office Aligarh stated that driving licence of accused Ex.3/C does not exist in record and they also proved the report Ex. PW-7/B and PW-8/B in this regard. Appellant has himself admitted that he was having a driving licence in question. Same was seized by the police from him during the investigation stage itself. Appellant has taken the plea that the licence was got prepared through some agent, but he did not examine anyone in his defence. Appellant himself has submitted the driving licence, knowing fully well that it was not a genuine driving licence. I am also fortified in Digitally this regard by the judgment Emperor Vs. Mohit Kumar signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
Mukherjee AIR 1926 Cal 89, wherein it has been 2024.05.18 16:59:55 +0530 categorically observed that if a person fraudulently or CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 11 of 16 dishonestly presents a document to another person, knowing or having reason to believe such document to be a forged document, the document is "used as genuine"
within the ambit of Section 471 IPC. It is also held therein that when a person is called upon to produce a document and he produces the same, knowing or having reason to believe the same to be a forged document, such person cannot claim absolution. In the present case also, production of forged driving licence was voluntary act and he deliberately used the document by submitting the same before the police with clear intent to mislead the police. Thus, for all practical purposes, it was "user" within the scope and ambit of Section 471 IPC.
31. Reference be also made to King Emperor Vs. Bansi Sheikh, AIR 1924 Cal 718 in which it has been held that if a person puts forward a document as supporting his claim in any matter, whether such document is acted upon by the court or used in evidence is immaterial for the purpose of constituting use of the document by the party within the meaning of Section 471 IPC. The mere production of document in support of the claim made by the accused was regarded as sufficient for the purpose of determining the guilt under Section 471 IPC. PURSHOTTAM PATHAK 32. Therefore, in view of the testimony of PW-3, PW-7 Digitally signed by and PW-8, it stands proved that appellant/ accused has PURSHOTTAM PATHAK Date: 2024.05.18 used a fake license as genuine and therefore, he is liable to 17:00:01 +0530 CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 12 of 16 be convicted for offence u/s 471 IPC. Thus, conviction of appellant under Section 471 IPC is justified.
33. As far as offence u/s 474 IPC is concerned, since the appellant has been convicted for offence u/s 471 IPC, he cannot be convicted for offence u/s 474 IPC.
34. The conviction of accused/appellant is therefore, upheld.
35. Now coming to the sentence imposed by the Ld. Trial Court, whether it requires any modification. The appellant has moved an application under Section 4 of the Probation of Offenders Act seeking his release on probation. Ld. Counsel for the appellant has contended that the incident alleged in this case took place almost 12 years back and that the appellant is now aged about 41 years. He also submitted that the appellant has faced trial for more than 12 years and there is no complaint in respect of his behavior.
36. The application has been opposed by the Ld. APP for the State.
37. There can be no dispute that the appellant has caused the grievous injury to the complainant by his rash and negligent act. But then, it also cannot be ignored that the offence took place more than 12 years back and the Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK appellant has already faced the pangs and suffered agony PATHAK Date:
2024.05.18 17:00:06 of trial. He is living a settled life and in case he is +0530 CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 13 of 16 sentenced, he will be stigmatized and his life will be ruined. Therefore, a lenient view may be taken.
38. Section 4 of the Probation of Offenders Act empowers the Court to release the convict on entering into a bond, with or without sureties, on probation when he is found guilty of committing any offence not punishable with death or imprisonment for life.
Relevant portion of Section 4 is reproduced as under:-
"4.Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavior;
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond."
39. For exercising the power which is discretionary, the Court has to consider various circumstances of the case, like the nature of the offence and the character of the offender. While considering the nature of the offence, the Digitally signed by PURSHOTTAM Court must take realistic view of the gravity of the offence, PURSHOTTAM PATHAK PATHAK Date:
2024.05.18 17:00:10 the impact which the offence had on the victim, the benefit +0530 available to the accused under this provision is subject to CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 14 of 16 the limitation embodied in the provision as is evident from the use of the word "may" which clearly indicates that the discretion vested with the Courts whether to release the offender in exercise of the power under Section 3 or 4 of the Act having regard to the nature of the offence and character of the offender and over all circumstances of the case. The powers under Section 4 of the Act vest with the Court when any person is found guilty of the offence committed not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Courts come to a conclusion by considering the circumstances of the case including the nature of the offence and the character of the offender, benefit should be given to the accused. Obviously, this power can be exercised by the Court even at the appellate stage.
40. Having regard to the rival contentions and having gone through the circumstances emanating from the record and after in depth consideration of the entire matter, I find no legal impediment for considering the case of the appellant for grant of probation, particularly, in light of the fact that the incident in this case (i) pertains to the year Digitally signed by 2012; (ii) the appellant has already faced the pangs and PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.05.18 suffered agony of protracted trial and appeal for the last 17:00:16 more than 12 years.
+0530 CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 15 of 16
41. Even the modern trend of penology also leads to the reformation of the offender so as to make him useful citizen of the society.
42. Let a report be called from the Probation Officer u/s 4 (2) of Probation of Offenders Act, 1958 for next date i.e. 30.05.2024.
43. Copy of this judgment be given to Ld. LAC for appellant forthwith. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.05.18 17:00:44 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 18th DAY OF MAY, 2024 SAKET COURTS: N.D (This judgment contains total 16 signed pages) CA No. 260/2023 Arvind Kumar Vs. The State Govt of NCT of Delhi Page 16 of 16