Delhi District Court
State vs . Munna Tiwari Khurana Date: on 15 December, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 482/05 Digitally signed
PS : Kalkaji (Crime Branch) by MANISH
U/s : 279/338 IPC MANISH KHURANA
State Vs. Munna Tiwari KHURANA Date:
Unique ID No. : 86448/16 2018.12.15
15:06:12 +0530
Date of institution of case : 12.05.2008
Date of reserving the judgment : 26.11.2018
Date of pronouncement of judgment : 15.12.2018
J U D G M E N T
1. S. No. of the Case : 33/02/08
2. Date of Commission of Offence : 15.05.2005
3. Name of the complainant : Sh. Subhash Chand
S/o Sh. Chandru
R/o 160, Shahpur Jat,
New Delhi
4. Name, parentage & address of accused : Munna Tiwari
S/o Sh. Lalji Tiwari
R/o B18/19, Part4, J J
Colony, Bindapur, Delhi and
VillageNawada, PS & Post
Rampur, DistrictJaunpur,
UP.
5. Offence complained of or proved : u/s 279/338 IPC
6. Plea of Accused : Pleaded not guilty
7. Final Order : Convicted u/s 279/338 IPC
Case of the Prosecution
1. The prosecution case is that on 15.05.2005 at about 7.30 am at Outer Ring Road, Modi Mills, Main Road, the accused was driving a Toyota Qualis car bearing no. HR51H7884 on a public way in a rash and negligent FIR No. 482/05 State Vs. Munna Tiwari 1/22 manner so as to endanger human life and safety of others and while driving so the accused hit the aforesaid car against one Scooter bearing no. DL3SAE2607 and caused grievous injuries to complainant Subhash Chand and thereby accused committed the offence punishable u/s 279/338 IPC.
2. Cognizance of the offence was taken and the accused was summoned to face the trial. Copy of the chargesheet was supplied to the accused. Notice u/s 279/338 IPC was ordered to be framed against the accused Munna Tiwari vide order dated 17.03.2009. Notice was accordingly framed to which accused pleaded not guilty and claimed trial. During admission/denial of the documents, accused admitted the preparation of MLC no. 58406/05 dated 15.05.2005 as Ex.A1, mechanical inspection report of offending vehicle bearing no. HR51H7884 as Ex.A2 and mechanical inspection report of vehicle bearing no. DL3SAE2607 as Ex.A3 vide his statement recorded u/s 294 Cr.PC.
3. Prosecution examined 10 witnesses in order to prove its case.
4. PW1/complainant Subhash Chand deposed that he was working as Field Officer in HDS Securities and on 15.05.2007 he was going by his scooter bearing no. DL3SAE2607 to check the presence of security guard at Old Ishwar Nagar and when he reached at main road outer ring road, opposite Modi Mill, he saw a Toyota Qualis bearing no. HR51H7884 coming from Kalkaji side at a very high speed and as soon as it reached near him, he tried to save himself by taking a turn towards Old Ishwar Nagar, however, in the meantime the Toyota car struck against his scooter as the accused was driving the vehicle at that time at a very fast speed. He further stated that the accused did not stop the vehicle, however, after a while public person got him stopped. He further stated that accused alongwith 34 lady passengers and one gents passenger namely Dr. Alam came to him and took him to AIIMS hospital. He further stated that he called his son and nephew from a mobile phone of a FIR No. 482/05 State Vs. Munna Tiwari 2/22 public person present at the spot. He further stated that his son Mohan Singh reached at the spot when he was being taken to hospital and his son reached at the hospital by a scooter. He further stated that his nephew Hans Raj and his 2 3 friends met him at AIIMS hospital. He further stated that at the same night one HC Netrapal met him at hospital and got his statement recorded through his nephew Hans Raj on his narration and he signed the same which is Ex.PW1/A. He stated that at the time of recording his statement, he told that the offending vehicle's registration number was HR51H7684, however, on the next morning when he recollected its correct number he again revealed the same to the said HC as HR51H7284. He further stated that he sustained multiple fractures in the accident and also pointed out the place of occurrence to the police on the next day after getting discharged from the hospital. He further stated that the accused did not blow horn. He again stated that the accused had blown the horn from a distance of 150 meters but when he reached near him, he (accused) did not blow horn. During identification of photograph of the offending vehicle i.e HR51H7884 which are mark A1 to A4, the witness stated that these are not the photographs of the same vehicle as it was of white colour. Ld APP for the State sought permission to cross examine this witness on the point of colour of offending vehicle. During his cross examination by Ld APP for the State he stated when his son reached the spot, he (his son) noted down the number of offending vehicle. He (PW1/complainant) stated that he did not see the number of the vehicle. He stated that when the vehicle was approaching near to him, he saw the colour of its bonnet which appeared to be light white, however, he could not notice the colour of whole body of vehicle as in the meantime, he fell down after being hit. He admitted that he had properly identified the driver present in the Court while driving the offending vehicle and causing the accident. He stated that after accident, accused helped him to sit on the front seat of the vehicle besides him and he took him (PW1) to FIR No. 482/05 State Vs. Munna Tiwari 3/22 hospital. He denied that he might not have been able to notice the colour of the vehicle on account of his old age. During his cross examination by Ld defence counsel he admitted that the driver Munna Tiwari and other people helped him and put him in the vehicle and took him to the hospital. He stated that accused had not given any ID proof to him. He stated that he became unconscious at the spot of incident and he stated that the accident took place at about 6.45 am. He could not tell as to which of his child informed the police. He could not tell as to whether his family members or someone else stopped the accused from going from hospital or not or as to what was the reason for that. He admitted that the statement Ex.PW1/DA was given by him to the police. He denied that he allowed accused Munna Tiwari to move away from the hospital alongwith offending vehicle as he was not at fault and accident took place due to his fault. He admitted that he had not stated in his statement Ex.PW1/DA regarding non blowing of horn by the accused. He admitted that he had not stated in his statement that he had turned back his scooter after seeing the vehicle at high speed. He stated that no repairing work was going on near the spot. He denied that due to the pits on the road side, his scooter was hit in the pit and fell down. He denied that after seeing him injured on the road side, the accused stopped his vehicle and helped him by taking him to hospital for treatment or that the accused did not cause accident or that the accused only helped him (PW1). He denied that neither he or his family members immediately informed the police against the accused or that they also allowed the accused to move from the hospital as he was not guilty of any accident but only helped him. He denied that he was deposing falsely.
5. PW2 Hansraj deposed that on 15.05.2005 at about 7.30 am he received the information that his uncle met with an accident and that his elder brother Mohan Singh had reached at the spot i.e near Modi Flyover, Kalkaji. He FIR No. 482/05 State Vs. Munna Tiwari 4/22 stated that his brother shifted his uncle i.e the complainant in AIIMS hospital in Toyota Qualis car bearing no. HR51H7884 by which the accident took place. He stated that he reached at the hospital and his uncle was admitted in AIIMS hospital for medical examination and he asked the driver/accused Munna Tiwari to hand over the documents of the offending vehicle for registration of FIR but he refused to give the same. This witness identified the accused Munna Tiwari in the Court. He further stated that thereafter accused Munna Tiwari handed over his driving licence and he gave him his office address i.e C88, Tagore Garden, Delhi and that the family of Dr. Alam was sitting in the offending vehicle as they were proceeding towards Mussoorie by offending vehicle. He stated that Dr. Alam provided his mobile number to him and also requested him to go ahead and stated that he would provide proper assistance in future regarding the incident. He stated that after getting the xray report he found that there were multiple fractures in the right leg (femur bone) of his uncle. He stated that he went to PS Kalkaji and narrated the incident to the police officials upon which police came at AIIMS hospital at around 1011.00 pm and he stated that IO Netrapal recorded the statement of his uncle which is already Ex.PW1/A. He stated that the number of the offending vehicle i.e HR 51H7684 was wrongly narrated by the complainant/injured and thereafter he narrated the actual number of offending vehicle i.e HR51H7884 to the IO and the complainant. He further deposed that the complainant also stated that the actual number of offending vehicle was HR51H7884 and the IO corrected the number of offending vehicle in the complaint. He stated that the IO recorded his statement. This witness was shown the photographs mark A1 to A4 of the offending vehicle no. HR51H7884 placed on record and after seeing the photographs he stated that the said photographs were not of the offending vehicle as it was of white colour. Ld APP for the State sought permission to cross examine this witness on the point of identity of offending vehicle. During FIR No. 482/05 State Vs. Munna Tiwari 5/22 his cross examination by Ld APP for the State he denied that the photographs shown to him were of offending vehicle. He denied that word "Bunty" was written on the offending vehicle. He voluntarily stated that the offending vehicle was of white colour and was having Reg. No. HR51H7884. During his cross examination by Ld defence counsel he admitted that he was not present when the accident took place and that he was not the eyewitness. He stated that the incident occurred on 15.05.2005 and his statement was recorded by the police in the night on the day of incident. He stated that he put his signatures on the statement recorded by the police. He denied that his uncle and brother told him that accused Munna Tiwari had no fault or role in the accident and therefore, he was allowed to go from AIIMS hospital. He stated that he went to police station for registration of FIR at about 23 pm on the day of incident. He stated that he handed over the driving licence and office address of accused Munna Tiwari and also shown the admit card of his uncle Subhash Chand for registration of FIR. He stated that police took the statement of his uncle on 15.05.2005 i.e the date of incident. He stated that when his uncle reached at AIIMS hospital apparently no injury was visible, however, he was feeling pain in his leg and shoulder. This witness was confronted with his statement u/s 161 Cr.PC where nothing about Dr. Alam and his family or about their journey to Mussoori is mentioned. He stated that his statement was recorded by the police only once. He admitted that his statement was not recorded on 28.12.2005 as mentioned in his statement u/s 161 Cr.PC. He denied that he was deposing falsely to implicate accused Munna Tiwari or that he was not present in AIIMS hospital on the date of incident.
6. PW3 HC Bishan Dass deposed that on 15.05.2005 he was posted at PS Kalkaji as Duty Officer and he received the rukka sent through Ct. Prahlad on the basis of which he registered the present FIR Ex.PW3/A and he FIR No. 482/05 State Vs. Munna Tiwari 6/22 made endorsement on rukka Ex.PW3/B.
7. PW4 HC Prahlad Singh deposed that on 16.05.2005 HC Netrapal gave him rukka and sent him to PS Kalkaji for registration of FIR and he got the FIR registered and came back at the spot and handed over copy of FIR and original rukka to HC Netrapal.
8. PW5 Ct. Satender Kumar deposed that on 12.01.2008 he was posted as Constable at SIT Section Crime Branch, Sector18, Rohini and on that day one Iqbal Singh came to his office and produced his vehicle no. HR51H 7884 make Totoya Qualis to SI Ashok Kumar which was seized vide memo Ex.PW5/A and the said vehicle was mechanically inspected by Retd. SI Devender Kumar and thereafter the said vehicle was deposited in Malkhana of PS Kalkaji and the photocopy of RC, insurance and PUC certificate of the said vehicle were seized vide seizure memo Ex.PW5/B and Ex.PW5/C. This witness was shown the four photographs mark P1 to P4 of the abovesaid vehicle which he identified.
9. PW6 ASI Rajender deposed that on 31.12.2007 he was posted at PS Crime Branch and on that day he joined the investigation of this case with Inspector Ashok Kumar and he alongwith accused Munna Tiwari went to C3, Rajouri Garden where they met wife of Iqbal Singh and told her that vehicle no. HR51H7884 TATA Qualis was required to be produced. He stated that thereafter Munna Tiwari was taken to the spot where the site plan was prepared at his instance and he was directed to produce his surety but he could not produce the same and he was taken to PS Samaypur Badli. He stated that the IO recorded his statement. Ld APP for the State sought permission to put the leading question to this witness which was granted and this witness admitted the suggestion given by Ld APP for the State that they all had gone to Tagore Garden Extension and not to Rajouri Garden. He stated that the Iqbal FIR No. 482/05 State Vs. Munna Tiwari 7/22 Singh was the owner of the Toyota Qualis car.
10. PW7 Ct. Atul deposed that on 31.12.2007 he was posted in SIT Crime Branch, Rohini and on that day he was called by SI Ashok Kumar who told him to visit H. No. B1819, Pocket4, JJ Colony, Bindapur where they met accused Munna Tiwari and the IO prepared the documents regarding his arrest and he was brought to SIT office, Rohini Sector18 where complainant Subhash was already present who saw the accused Munna Tiwari and identified him and told that Munna Tiwari was driving the TATA Qualis car bearing no. HR51H 7884 and hit his scooter. He stated that the personal search of the accused was conducted vide memo Ex.PW7/A and his disclosure statement was recorded vide memo Ex.PW7/B. During his cross examination by Ld defence counsel he deposed that he had not made any departure entry and that he went to Bindapur in a three wheeler alone. He stated that when he left from the office, the complainant was not present there. He stated that he took about 04 hours for going to Bindapur and return therefrom. He could not tell as to who called complainant Subhash to the office and he stated that the registration number of the scooter with which the accident took place is DL3SAE2607. He denied that SI Ashok arrested the accused Munna and falsely implicated him in the present case.
11. PW8 ASI Netrapal deposed that on 16.05.2005 he was posted at PP Nehru Place, PS Kalkaji as HC and on that day HC Dinesh came to PP Nehru Place and gave MLC of Subhash Chand and he was directed by Incharge PP Nehru Place to conduct further investigation of this case and he reached AIIMS hospital where he found Subhash admitted for treatment. He stated that he obtained permission from the Doctor for recording the statement of complainant who was declared fit for giving the statement. He stated that the complainant gave his statement which was written by his nephew Hansraj in FIR No. 482/05 State Vs. Munna Tiwari 8/22 his handwriting which is Ex.PW1/A and the same was signed by complainant Subhash. He stated that he prepared the rukka Ex.PW8/A and handed it over to Ct. Prahlad for registration of FIR and he went to PP Nehru Place. He stated that Ct. Prahlad returned to PP Nehru and handed over copy of FIR and original rukka to him and he conducted investigation during which complainant Subhash and his nephew Hansraj gave him photocopy of driving licence of Munna Tiwari which was seized vide memo Ex.PW8/B. He stated that thereafter Subhash gave his scooter make Bajaj Chetak bearing no. DLSAE 2607 which was seized vide seizure memo Ex.PW8/C and thereafter the case was transferred to Crime Branch. He further stated that he also prepared the site plan Ex.PW8/D on 18.07.2005. He stated that the copy of driving licence seized by him is marked as Ex.PW8/X. This witness was cross examined by Ld defence counsel during which he did not remember the name of the Doctor from whom he obtained the permission for recording the statement of the complainant. He deposed that at AIIMS hospital he did not meet accused and he also did not find the offending vehicle there. He stated that at the time of recording of statement of complainant Subhash Chand, his nephew was also present who wrote down the complaint. He stated that he prepared rukka Ex.PW8/A after reaching at PP Nehru Place and handed over the same to Ct. Prahlad at about 7.55 am. He stated that victim Subhash came in PP Nehru Place alongwith his scooter on 18.07.2005 and at that time he was accompanied by his nephew. He stated that he had not seized RC of aforesaid scooter as it was not produced to him. He denied that he never conducted investigation of this case or that he never met the victim Subhash Chand. He denied that no complaint was ever received by him or that he prepared the rukka on the basis of false documents. He admitted that there is a cutting on the number of offending vehicle at point C and D of Ex.PW1/A. He denied that he was deposing falsely.
FIR No. 482/05 State Vs. Munna Tiwari 9/22
12. PW9 Retd. SI Mahender Singh deposed that in the year 2005 06 he was posted as ASI at SIT Section Crime Branch, Delhi and he was handed over further investigation of this case for about one week as SI Shailender Tomar who was investigating the case went on station leave. He stated that nothing was done by him regarding the investigation of this case.
13. PW10 Inspector Ashok Kumar deposed that in the year 2006 he was posted as SI in SIT Crime Branch, Sector18 Rohini and the investigation of this case was handed over to him from the previous IO ASI Mahender Singh. He stated that he collected the case file and during investigation he met the complainant Subhash Chand who produced his scooter bearing no. DLSAE2607 which was already seized by HC Netrapal and released on superdari. He stated that he got the mechanical inspection of the said scooter done and obtained the report Ex.A3. He stated that he issued notice to Iqbal Singh who was the owner of Toyota Qualis car but he did not produce the driver of the said car and thereafter he conducted inquiry on the basis of photocopy of the DL which was already seized by previous IO Mark8/X and on the basis of inquiry he came to know the complete address of the accused/the abovesaid DL holder Munna Tiwari and he visited the address of the accused where he came to know that accused was staying at Harijan Basti, JJ Colony, Bindapur, Delhi. He stated that he searched the accused at Harijan Basti, JJ Colony, Bindapur, Delhi and he was found residing in H. No. B1819, Pocket4, JJ Colony, Bindapur, Delhi and he visited and met the accused and interrogated him in the present case and after interrogation he arrested the accused in the present case vide arrest memo Ex.PW10/A and conducted his personal search vide memo already Ex.PW7/B. He stated that the accused was taken to the office of Crime Branch where complainant Subhash Chand was also called and the complainant identified accused Munna Tiwari as the person who was FIR No. 482/05 State Vs. Munna Tiwari 10/22 driving the offending vehicle i.e the Toyota Qualis car at the time of the incident. He stated that thereafter he interrogated the accused and recorded his disclosure statement already Ex.PW7/A and the accused pointed out the place of incident vide pointing out memo already Ex.PW6/B. He also stated that the accused also pointed out the house of owner of offending Toyota Qualis car at C 3, 1st floor, Tagore Garden vide pointing out memo already Ex.PW6/B. He stated that the accused was admitted to police bail and thereafter he issued notice u/s 91 MV Act to Iqbal Singh who in pursuance thereto produced the Toyota Qualis car bearing no. HR51H7884 which he seized vide memo Ex.PW5/A and that Iqbal Singh also produced the photocopy of RC, insurance and PUC certificate of abovesaid vehicle which were seized vide memo already Ex.PW5/B. He stated that he got mechanically inspected the Toyota Qualis car and obtained the mechanical inspection report Ex.A2 and also got the said car photographed and placed the photographs thereof alongwith negatives which are mark P1 to P4 and Ex.PW10/X. He stated that he also prepared pencil trace sketch of engine number and chasis number of TATA Qualis car vide Ex.PW10/Y and the said vehicle was released on superdari to Iqbal Singh vide Superdari memo Ex.PW10/Z. He stated that he recorded the statement of witnesses u/s 161 Cr.PC and after completion of investigation he prepared the chargesheet and filed in the Court. The accused did not dispute the identity and existence of the vehicles involved in the present case. This witness was cross examined by Ld defence counsel.
14. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.P.C. wherein all the incriminating evidence were put to the accused to which he denied and pleaded innocence. He further stated that the accident had not been caused by him. He also stated that the complainant has falsely implicated him in the present case just to get compensation from him. Despite opportunity, the accused did not lead any evidence in his defence.
FIR No. 482/05 State Vs. Munna Tiwari 11/22
15. I have heard Ld. Addl. PP for State as well as Ld. Counsel for accused and have gone through the record carefully.
Finding of the Court
16. The allegations against the accused are that on 15.05.2005 at about 7.30 am at Outer Ring Road, Modi Mills, Main Road, the accused was driving a Toyota Qualis car bearing no. HR51H7884 on a public way in a rash and negligent manner so as to endanger human life and safety of others and while driving so the accused hit the aforesaid car against one Scooter bearing no. DL3SAE2607 and caused grievous injuries to complainant Subhash Chand and thereby accused committed the offence punishable u/s 279/338 IPC.
17. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be.
18. The accused in the present case has been charged with offence under Section 279/338 IPC. To prove the case against the accused the prosecution is required to prove the following facts:
A. The identity of the accused being the driver of the offending vehicle; B. That the accused caused the accident by his rash and negligent driving at a public place;
C. That the rash or negligent driving of the accused resulted in the injury to the victim.
THE IDENTITY OF THE ACCUSED
FIR No. 482/05 State Vs. Munna Tiwari 12/22
19. In the case at hand, the complainant/injured PW1 Subhash Chand has identified the accused in the court as the driver of the vehicle bearing no.
HR51H7884 i.e. Toyota Qualis car which caused the accident. PW1 stood well during his crossexamination regarding the identity of the accused as the driver of the aforesaid vehicle. Perusal of the cross examination of PW1 Subhash Chand reveals that a suggestion was given to the complainant that driver Munna Tiwari helped him and put him in the Toyota Qualis car and took him to the hospital. Further, suggestion was given to the complainant that complainant allowed accused Munna Tiwari to go away from the hospital alongwith offending vehicle i.e the Toyota Qualis car as he was not at fault and the said suggestion was denied by the complainant. Therefore, as per the evidence on record the accused has not disputed the fact that he was driving the Toyota Qualis car bearing no. HR51H7884 on the date and time of alleged incident though he disputed the factum of rash and negligent driving by him.
20. Ld. counsel for the accused argued that the accused has been falsely implicated and he only stopped his vehicle at the spot of incident to help the complainant and Ld counsel also argued that in the initial complaint dated 16.05.2005 on which the FIR was registered, there is a cutting in the registration number of the Toyota Qualis car which was being driven by the accused and therefore, the accused may by acquitted.
21. Ld counsel for the accused further argued that the photographs mark A1 to A4 of Toyota Qualis car bearing no. HR51H7884 which are placed on record and shown to the complainant do not prove the case put forth by the prosecution as complainant/PW1 Subhash Chand and PW2 Hansraj have categorically stated during their testimony that the Toyota Qualis car which caused the accident was of 'White' colour whereas the photographs of the said vehicle when shown to the complainant depicted the 'Red' colour of the abovesaid vehicle.
FIR No. 482/05 State Vs. Munna Tiwari 13/22
22. So far as the abovesaid submissions made by the Ld counsel are concerned, it is pertinent to mention that the incident occurred on 15.05.2005 and FIR was registered at PS Kalkaji whereas due to lackadaisical approach of local police the investigation of this case was transferred to PS Crime Branch and the Toyota car bearing no. HR51H7884 by which the incident was caused was seized vide seizure memo Ex.PW5/A dated 12.01.2008 by the IO of PS Crime Branch. There was ample time available with the owner of the car and the accused to change the colour of the vehicle since the date of incident till the date of seizure of the same by the police. The complainant has categorically stated during his testimony that at the spot of incident he saw the Toyota Qualis car coming from Kalkaji side at a very high speed which hit his scooter and the accused Munna Tiwari was driving the vehicle at that time.
23. So far as the arguments of Ld defence counsel regarding the cutting in the registration number of the vehicle Toyota Qualis car in the complaint Ex.PW1/A are concerned, it is pertinent to mention that the complainant fairly stated that he did not see the number of the vehicle due to accident and his son and nephew reached at the spot and noted down the number of the offending vehicle and told him. The complainant also deposed about the rash and negligent manner of driving of the accused. PW2 Hansraj, who reached at the spot alongwith son of the complainant on the date of incident on receipt of information regarding the accident of his uncle/complainant Subhash Chand, deposed that his brother Mohan Singh i.e the son of the complainant shifted his uncle to AIIMS hospital in Toyota Qualis car bearing no. HR51H7884 by which the accident took place and he also stated that he asked the driver of the said car i.e accused Munna Tiwari to hand over the documents of the Toyota Qualis car for registration of FIR but the same were not provided to him and he also stated that accused Munna Tiwari handed over his driving licence and gave him his office address and left. PW2 also FIR No. 482/05 State Vs. Munna Tiwari 14/22 clarified during his testimony that the he went to police station for registration of FIR and the IO/Netrapal recorded the statement of his uncle i.e complainant Subhash Chand which is Ex.PW1/A and his uncle wrongly narrated the number of the offending vehicle as HR51H7684 and thereafter he narrated the true number of the offending vehicle i.e HR51H7884 to the IO and to the complainant upon which the IO corrected the number of offending vehicle as HR51H7884. The accused has not disputed that he was present at the spot or that the number of the Toyota Qualis car which was being driven by him on the date of alleged incident was HR51H7884. Therefore, I do not find merits in the abovesaid arguments raised by Ld defence counsel.
24. It is pertinent to mention that the accused has not alleged any animosity with the complainant, who has identified him as a driver of the Toyota Qualis car which caused the accident and there was no reason for the complainant to falsely implicate the accused in present case. Further, there was no occasion for accused to handover his driving licence to the family of the complainant if the accident was not caused by him.
25. Ld counsel for the accused also alleged that during his testimony PW1/complainant Subhash Chand stated the date of incident as 15.05.2007 whereas as per the FIR the incident occurred on 15.05.2005. Ld counsel submitted that considering the abovesaid fact the accused may be given benefit of doubt and he may be acquitted.
26. So far as abovesaid submissions made by Ld defence counsel are concerned, it is pertinent to mention that the complainant/PW1 Subhash Chand has proved his complaint dated 16.05.2005 as Ex.PW1/A bearing his signatures at point A in which date of incident is correctly mentioned. Further, the complainant was admittedly taken to the hospital by the accused Munna Tiwari and he was examined vide MLC dated 15.05.2005. The said MLC is admitted by the accused as Ex.A1 u/s 294 Cr.PC which also reveals that the incident FIR No. 482/05 State Vs. Munna Tiwari 15/22 occurred on 15.05.2005. In these circumstances, there appears to be typographical error in mentioning the date of incident during the testimony of PW1/complainant Subahsh Chand and the date of incident appears to be inadvertently recorded as 15.05.2007 instead of 15.05.2005. Further, the accused has also stated in his additional statement u/s 313 Cr.PC that on the date of incident he was driving the Toyota Qualis car, however, he alleged that the incident occurred due to the fault of complainant Subhash Chand who hit his scooter against his car.
27. Therefore, as per evidence on record, the prosecution has proved that the accused was driving the vehicle i.e Toyota Qualis car on the date and time of incident on 15.05.2005.
RASHNESS OR NEGLIGENCE
28. Having resolved the issue of identity now, we move on to the issue of culpable rashness and negligence.
29. In Idu Beg, (1881) 3 All 776 which has become locus classics, it was held that "Criminal rashness" is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either into the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted".
30. In view of the above settled law now the question arises for consideration is whether the prosecution has been able to prove the rashness or FIR No. 482/05 State Vs. Munna Tiwari 16/22 negligence on the part of accused in causing accident.
31. In the case at hand, PW1/complainant Subhash Chand who is the injured has categorically deposed that on the date of incident the accused while driving the Toyota Qualis car bearing no. HR51H7884 while coming at a very high speed struck against his scooter and the accused did not stop his car even after causing the accident and public person stopped him after some distance. The complainant has also deposed that the accused was coming in the Toyota Qualis car from Kalkaji side at a very high speed and as soon as the car reached near him, he tried to save himself by turning his scooter towards old Ishwar Nagar, however, the accused struck his car against his scooter. The complainant also stated that the accused blew the horn from a distance of 150 meter but he did not blow horn when he reached near to him.
32. The complainant was specifically asked during his testimony about the fault of the driver/accused at the time of accident and complainant categorically stated in his testimony that firstly the accused was driving at a fast speed, secondly he did not blow horn when he approached near to him and thirdly he was driving in a negligent manner. The complainant denied the suggestion given by Ld defence counsel during his cross examination that he allowed accused Munna Tiwari to go away alongwith offending vehicle from the hospital where he (complainant) was admitted as the accused was not at fault or that the accident occurred due to his (complainant's) fault. The complainant also denied the suggestion that due to pits on the roadside his scooter was hit in the pit and fell down.
33. Perusal of the cross examination of complainant/injured reveals that the accused took the defence that the accident took place due to the fault of the complainant/injured and that the scooter of the complainant fell down due to pits on the road side. The injured was examined vide MLC No. 58406/05 dated 15.05.2005 Ex.A1 and the aforesaid MLC is admitted by the accused u/s FIR No. 482/05 State Vs. Munna Tiwari 17/22 294 Cr.PC. Perusal of the aforesaid MLC Ex.A1 reveals that the complainant/injured was admitted in the hospital and was examined by Dr. Ankur at AIIMS hospital, New Delhi with alleged history of road traffic accident when the complainant/injured was on two wheeler and hit by four wheeler and injuries on right shoulder and right hip were sustained by the complainant Subhash Chand and the complainant was accompanied by the accused Munna Tiwari in the hospital as per MLC.
34. It is further pertinent to mention that during the cross examination of PW1/complainant/injured Subhash Chand the accused took the defence that the scooter of the victim/injured Subhash Chand was hit in the pit and fell down and it is alleged by Ld defence counsel that the victim/scooterist fell down due to various pits on the road side at the spot of incident. The suggestions given by Ld defence counsel regarding the accident due to pits on the road side were denied by the complainant/injured Subhash Chand during his cross examination. Whereas during his additional statement u/s 313 Cr.PC the accused took the stand that on the date of incident the scooter of victim Subhash Chand hit his Toyota Qualis car from behind and that he (accused) took the victim to the hospital where he (complainant/victim) was medically examined. The accused further stated that he was not at fault at the time of incident as the scooter of the victim got entangled with the rear mud guard of Toyota Qualis car which was being driven by him at that time. However, no such suggestion, regarding the facts alleged by the accused during his additional statement u/s 313 Cr.PC, were given to the PW1/complainant/injured Subhash Chand during his cross examination. Hence, the contradictory stand/defence taken by the accused points towards the fault of the accused in causing the accident.
35. The mechanical inspection report of the scooter bearing no. DL 3SAE2607 and that of Toyota Qualis car bearing no. HR51H7884 were also FIR No. 482/05 State Vs. Munna Tiwari 18/22 admitted by the accused u/s 294 Cr.PC as Ex.A2 and Ex.A3. The mechanical inspection of the vehicles were done on 12.01.2008 i.e after much delay from the date of alleged incident. However, it is pertinent to mention that the investigation of this case was transferred to Crime Branch and the mechanical inspection of the vehicles were got conducted by the IO of Crime Branch. There was laxity in investigation of this case by the local police of PS Kalkaji and it appears that due to the laxity on the part of local police the investigation of this case was transferred to PS Crime Branch. It is pertinent to mention that even the colour of the vehicle i.e Toyota Qualis car is stated to have been changed from white to red after the alleged incident.
36. The complainant stated during his testimony that the Toyota Qualis car bearing no. HR51H7884 came from Kalkaji side at a very high speed and as it reached near him he tried to save himself by turning his scooter towards old Ishwar Nagar, however, the Toyota Qualis car struck against his scooter. The site plan Ex.PW8/D which is not disputed by the accused reveals that the accident occurred on the outer ring road and that the Toyota Qualis car which was coming from Kalkaji side hit the scooter of the complainant at point A which was ahead of the Toyota Qualis car at that time. The road on which the accident occurred was an one way road and the Toyota Qualis car must have hit the scooter of the injured from behind due to which the victim fell down alongwith his scooter and sustained injuries. The act of hitting the scooter of the victim from behind by the vehicle which was being driven by the accused itself speaks of rash and negligent driving by the accused. The accused hit the scooter of the victim from behind and it nowhere alleged that the accused applied breaks. Reliance is placed upon 'Parasnath Vs State of Delhi" 2003 (3) JCC 1500 wherein in para 6 the Hon'ble High Court held as : ".........In the case in hand the appellant hit the scooterist from behind. It is not the case of the FIR No. 482/05 State Vs. Munna Tiwari 19/22 appellant that the scooterist had applied break all of a sudden and therefore, the appellant was taken unaware which led the appellant's bus hitting the scooter from behind. Act of the negligence can be clearly attributed to the petitioner in this case as he is solely responsible for causing this accident without any fault of the scooterist".
37. Considering the facts and circumstances and the evidence on record, I have no hesitation in holding that accused is guilty of culpable rashness and negligence.
THE CAUSE OF INJURY
38. The next requirement to prove the case against the accused is whether the injured sustained injuries due to the rash and negligent act of the accused. Having proved the identity of the accused and the accident taking place due to his rash or negligent driving, the prosecution is required to prove that the act of the accused was Causa Causan. To hold the accused guilty, it is required to be proved on the record that the rash and negligent driving of the accused caused injury to the victim. The accused has been charged for the offence u/s 279/338 IPC and the prosecution has alleged that the injured sustained grievous hurt due to rash and negligent driving of the accused. The injured was brought to AIIMS Hospital, New Delhi after the incident where his MLC no. 58406/05 dated 15.05.2005 as Ex.A1 was prepared. The factum of sustaining the injuries by the injured in road traffic accident is not disputed and the aforesaid fact is also mentioned in the MLC Ex.A1. It is also not in dispute that the injured was taken to AIIMS Hospital after the incident.
39. Perusal of the MLC of the injured Subhash Chand which is Ex.A1 reveals that the nature of injury has been opined/encircled as "grievous" and further the report of Radiologist which is also admitted by the accused u/s 294 Cr.PC is Ex.A4 and Ld APPfor the State pointed out that as per the xray report FIR No. 482/05 State Vs. Munna Tiwari 20/22 the fracture of right side fermur bone was found. The injured PW1 has categorically stated during his deposition dated 14.04.2010 that he sustained multiple fractures in the accident. Perusal of the entire cross examination of PW1/injured Subhash Chand reveals that the fact of sustaining the fractures by the complainant/injured has not been challenged or disputed by Ld defence counsel.
40. Section 320 IPC defines the term "grievous hurt" and it states that following kinds of hurt only are designated as 'grievous': Seventhly fracture or dislocation of bone or tooth. Therefore, if the hurt caused resulted into fracture of a bone, it will be deemed to be a grievous hurt as contemplated u/s 320 IPC.
41. The MLC dated 15.05.2005 and the xray report have been admitted by the accused u/s 294 Cr.PC as Ex.A1 and Ex.A4 respectively and nature of injury has been opined as grievous due to fracture of fermur bone and the complainant also stated during his testimony that he sustained fracture of bone due to the incident and the accused has not disputed the factum of sustaining the grievous injury or fracture of bone by the complainant during cross examination of PW1/complainant. Therefore, considering the material placed on record and the evidence recorded, I am of the opinion that the prosecution has successfully proved that the injured PW1 Subhash Chand sustained grievous injury in the incident caused by rash and negligent driving of the accused.
42. In view of the abovesaid discussion, I am of the opinion that prosecution has successfully proved beyond reasonable doubts that accused Munna Tiwari while driving the vehicle bearing no. HR51H7884 in a rash and negligent manner caused grievous injury to injured Subhash Chand. Hence, accused Munna Tiwari is liable to be convicted for the offence u/s 279/338 IPC.
43. Accordingly, accused Munna Tiwari stands convicted for the FIR No. 482/05 State Vs. Munna Tiwari 21/22 offence u/s 279/338 IPC. Let the parties be heard on point of sentence.
Announced in the open court
Today on 15.12.2018 (Manish Khurana)
CMM/SE/District Court, Saket
New Delhi/15.12.2018
FIR No. 482/05 State Vs. Munna Tiwari 22/22