Delhi District Court
(South-West) vs Sh. Rakesh Kumar on 11 August, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE-05
(SOUTH-WEST), DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Rakesh
FIR No. 18/2008
Police Station : Chhawla
Under Section : 279/338 IPC
Unique Case ID Number: 02405R0096442012
Date of institution : 24.09.2009
Date of receipt on transfer : 11.04.2012
Date of reserving : 23.07.2015
Date of pronouncement : 31.07.2015
JUDGMENT
a) Serial number of the case : 200/1/12
b) Date of commission of offence : 29.10.2008
c) Name of the complainant : Assistant Sub Inspector
Jagbir Singh, No. 4341/D.
d) Name, parentage and address : Sh. Rakesh Kumar,
of the accused S/o Sh. Roshan Lal,
R/o Village Shikar Pur,
Police Station Chhawla,
New Delhi.
e) Offence complained of : Section 279 read with Section
338 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Convicted for the offences
State v. Rakesh
FIR No. 18/2008 P.S.: Chhawla Page 1 of 17
punishable under Section 279
read with Section 338 IPC
h) Date of final order : 31.07.2015
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment the accused is being convicted for the offence punishable under Section 279 read with Section 338 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 18/2008 Police Station Chhawla for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 29.10.2008 at about 06:35 p.m. at Jhatikra Road, Near Prem Basti Rewla Khanpur, New Delhi within the jurisdiction of Police Station Chhawla, the accused was driving an Accent car bearing registration No. DL 4 CAG 1378 in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause injury to any other person and while driving the aforesaid vehicle in the aforesaid manner he hit against a motorcycle bearing No. HR 26AD 5658 being driven by Sh. Sandeep and caused grievous injuries to Sh. Sandeep (driver of the said motorcycle) and Sh. Ravi (pillion rider on the said motorcycle).
ACCUSATION AGAINST THE ACCUSED
3. Vide order dated 13.01.2010 passed by the learned predecessor State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 2 of 17 of this Court, notice of accusation under Section 251 Cr.P.C. for the offences punishable under Sections 279 and 338 of the I.P.C. was served upon the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 17.04.2014, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or deny the genuineness of FIR No. 18/08, Police Station Chhawla, which was admitted by the accused and accordingly exhibited as Ex.P/A/1. In view of the admission made, the evidence of duty officer Head Constable Jai Pal was dispensed with.
EVIDENCE OF THE PROSECUTION
5. The prosecution in all examined seven witnesses.
6. PW-1 Constable Arvind had joined investigation with the investigating officer. PW-2 Sh. Ravinder and PW-3 Sh. Sandeep are the injured persons and eye-witnesses to the alleged accident in the present case. PW-4 Sh. Puran Chand is the mechanical inspector who had mechanically inspected the motorcycle make Hero Honda bearing No. HR 26AD 5608 and car make Hyundai Accent bearing No. DL 4CAG 1378 vide his reports Ex.PW4/A and Ex.PW4/B respectively. PW-5 Dr. S. Das had examined the injured persons Sandeep and Ravi vide MLC No. 1980/08 and 1981/08 Ex.PW5/A and Ex.PW5/B respectively. PW-6 Sub Inspector Jagbir Singh is the investigating officer in the present case. PW-7 Retired Sub Inspector Rohtash is the State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 3 of 17 PCR official who had removed the injured persons to the hospital.
STATEMENT / DEFENCE OF THE ACCUSED
7. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he was driving normally at a speed of 40-50 kmph. He stated that he was driving towards his home from Najafgarh and since the road was dug up and there were ditches on the road, he had slowed down his vehicle further. He stated that two boys riding on a motorcycle came from the opposite direction and on seeing the ditches on the road, they lost balance of the motorcycle and hit into his car from the front side. He added that he got down from his car and told those boys that they had caused damage to his car. He stated that as a result of the collision, his car had been damaged from the front right side, its front right hand side tyre had burst and the axle had also been damaged. He further stated that his car was not in a condition to be run. He added that the accident was caused due to the fault of the driver of the aforesaid motorcycle. He stated that he did not remember the number of the said motorcycle, however, the said persons had appeared as witnesses in the present case. He stated that he had left his vehicle on the spot and later on when he returned to the spot, he did not find his vehicle there. He stated that he had no knowledge regarding any notice under Section 133 Motor Vehicles Act. He did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
8. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 4 of 17 Prosecutor for the State and Sh. Subhash Yadav, learned counsel for the accused have been considered.
I. Charge under Section 279 I.P.C.
9. In order to bring home the guilt of the accused in respect of the offence under Section 279 I.P.C. charged against him, the prosecution was required to prove the following:
(i) that it was the accused who was driving the offending vehicle on the date, time and place of the alleged accident;
(ii) that it was the vehicle i.e. Hyundai Accent car bearing No. DL 4CAG 1378 which was being driven by the accused on the date, time and place of the alleged accident; and
(iii) that the accused was driving the offending vehicle in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person.
Re: Identity of the accused
10. In order to establish the identity of the accused qua the accident in question i.e. to establish that it was the accused who was driving the offending vehicle i.e. Hyundai Accent car bearing No. DL 4CAG 1378 on the date, time and place of the alleged accident, the prosecution has examined PW-1 Sh. Ravinder and PW-3 Sh. Sandeep.
11. PW-2 Sh. Ravinder is one of the injured and eye-witnesses to the alleged accident. In his examination-in-chief, he identified the accused as the driver of the offending vehicle. The said witness has not been State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 5 of 17 cross-examined on behalf of the accused and, thus, his testimony as to identification of the accused as the driver of the offending vehicle at the time of the alleged accident has remained unchallenged. Even otherwise, he deposed that after the accident in question, the driver of the offending vehicle had stopped his car for a moment and thereafter the driver of the offending vehicle fled away from the spot. The accident is alleged to have taken place at about 06.00 - 06.30 pm on an October evening and, therefore, there would have been sufficient light at the spot. Thus, there was reasonable opportunity for PW-2 Sh. Ravinder to have seen the driver of the offending vehicle at the time of and/or after the alleged accident. The testimony of PW-2 as to the identity of the accused qua the alleged accident is, therefore, found to be reliable.
12. PW-3 Sh. Sandeep is also an injured and eye-witness to the alleged accident. During his examination-in-chief, he correctly identified the accused as the driver of the offending vehicle at the time of the alleged accident. The said witness has not been cross-examined on behalf of the accused and, thus, his testimony as to identification of the accused as the driver of the offending vehicle at the time of the alleged accident has remained unchallenged. Not even a suggestion was put to PW-3 to the effect that the accused was not driving the Hyundai Accent car in question at the time of the alleged accident. Even otherwise, as per his testimony, at the time of the alleged accident, he was driving the motorcycle on which the injured persons were riding and the offending vehicle had come from the opposite direction. Though he stated that he had become unconscious after the accident, he specifically stated that before falling unconscious, he had seen the face of the driver of the State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 6 of 17 offending vehicle and had regained consciousness after some time at the spot itself. Moreover, the accident in question had occurred during the evening, i.e. around 06.00-06.30 pm. In the aforesaid circumstances, the injured/PW-3, who was an eye-witness to the accident in question, had sufficient opportunity to see the driver of the offending vehicle. His testimony regarding the accused having been the driver of the offending vehicle at the time of the alleged accident is found to be reliable.
13. Even otherwise, in his statement recorded under Section 313 Cr.P.C., the accused has admitted that he was driving the Hyundai Accent car at the time of the alleged accident. The same lends credence to the evidence led by the prosecution in that regard.
14. In view of the above, the prosecution has successfully established that it was the accused who was driving the offending vehicle in question on the date, time and place of the alleged accident.
Re: Identity of the offending vehicle
15. The case of the prosecution is that on the relevant date, time and place the accused was driving the Hyundai Accent car bearing No. DL 4CAG 1378. In his examination in chief, PW-2 Sh. Ravinder deposed that one Accent car bearing No. ...1378 had struck against the motorcycle on which he was riding along with his relative Sandeep. The Hyundai Accent car bearing No. DL 4CAG 1378 was exhibited in the court during the testimony of PW-2 Sh. Ravinder as Ex.P1. PW-3 Sh. Sandeep, in his testimony, stated that a white coloured car No. DL 4CAG 1378 had come from the front side and struck against his State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 7 of 17 motorcycle. The said witnesses have not been cross-examined on behalf of the accused and, thus, their testimony as to the identity and involvement of the Accent car in question in the alleged accident have remained unchallenged. Further, during the examination of PW-3 and PW-6, the identity of the car No. DL 4CAG 1378 was not disputed by the accused. Moreover, even in his statement recorded under Section 313 Cr.P.C., the accused has not disputed the involvement of the car No. DL 4CAG 1378 in the alleged accident. Further, as per the mechanical inspection report Ex.PW4/B, there was damage on the front side of the car No. DL 4CAG 1378, including the front windshield having been broken, engine bonnet having been damaged, front bumper having been damaged.
16. In view of the aforesaid, the involvement of the Accent car No. DL 4CAG 1378 in the accident in question stands established.
Re: Manner in which offending vehicle was being driven
17. The prosecution has examined only PW-2 Sh. Ravinder and PW-3 Sh. Sandeep as witnesses of the spot of the accident. Thus, it is their testimony which is to be examined for the purpose of this ingredient.
18. PW-2 Sh. Ravinder is one of the injured persons in the present case. In his statement dated 01.11.2008 recorded by the investigating officer under Section 161 Cr.P.C., he stated that on 29.10.2008, at about 06.00 pm, when he along with his relative Sandeep was coming from Pandwala towards Najafgarh, the driver of a white coloured car bearing No. 1378 was coming from the opposite side at a very high State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 8 of 17 speed and in a rash and negligent manner. He stated that people were calling out for help and were saying that the driver of the said car had caused an accident. PW-2 stated that though they moved their motorcycle to a side, yet the driver of the said car deliberately hit them and dragged them for quite some distance. He stated that they sustained a lot of injuries. PW-2 stated that he sustained a fracture in one of his hands and, on account of the injuries, a rod had to be inserted in his foot/leg. In his testimony in court, PW-2 deposed that on 29.10.2008, he along with Sandeep were coming from Pandwala Village on a motorcycle and, when they had just reached Revla Khanpur, an Accent car bearing No. ...1378 came from the opposite side in a very high speed and in a wavering manner ("saanp ki tarah lehrati hui") and struck against their motorcycle. He stated that due to the said impact, he fell on the front mirror (glass/windshield) of the said car and thereafter fell on the road. Thus, in his testimony in court, PW-2 has supported the version of the prosecution as to the manner in which the offending vehicle was being driven. He has not been cross- examined on behalf of the accused despite sufficient opportunity having been granted for the purpose. Thus, the testimony of PW-2 Sh. Ravinder has remained unchallenged and unrebutted.
19. PW-3 Sh. Sandeep is the other injured in the present case. In his statement dated 20.01.2009 recorded by the investigating officer under Section 161 Cr.P.C., he stated that on 29.10.2008, he along with his relative Ravinder @ Ravi was coming from Pandwala towards Najafgarh on a motorcycle No. HR 26AD 5658 belonging to Ravinder and being driven by Ravinder. He stated that at about 06.00 pm, when State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 9 of 17 they reached near Rewla Khanpur, the driver of a white coloured car bearing No. 1378 was coming from the opposite side at a very high speed and in a rash and negligent manner. He stated that though they had moved their motorcycle to a side, yet the driver of the said car hit against their motorcycle and dragged them for quite some distance due to which that they sustained a lot of injuries. PW-3 stated that the driver of the car left the car at the spot and fled from there taking advantage of the crowd. In his testimony in court, PW-3 deposed that on 29.10.2008, he along with one of his relatives namely Ravinder were going to Najafgarh road from Pandwala on a motorcycle which was driven by him. He deposed that at about 06.00-06.15 pm, when they had reached near Rewla Khanpur, a white coloured car bearing No. DL 4CAG 1378 coming from the opposite side in a zig-zag manner and at a high speed struck against his motorcycle, despite the fact that he had moved his motorcycle to a side. He stated that due to the said impact, he as well as Ravinder fell on the road. Thus, in his testimony in court, PW-3 has supported the version of the prosecution as to the manner in which the offending vehicle was being driven. He has not been cross- examined on behalf of the accused despite sufficient opportunity having been granted for the purpose. Thus, the testimony of PW-3 Sh. Sandeep has remained unchallenged and unrebutted.
20. Describing the manner in which the offending vehicle was being driven at the time of the accident, PW-2 Sh. Ravinder has firstly deposed that the vehicle was coming from the opposite side at a very high speed and secondly that it was being driven in a wavering/zig-zag manner. He also made a gesture showing movement in a zig-zag State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 10 of 17 manner. Further, as regards the manner in which the offending vehicle was being driven at the time of the accident, PW-3 Sh. Sandeep deposed that the Accent car was coming from the opposite side in a zig-zag manner and at a high speed and struck against his motorcycle, despite the fact that he had moved his motorcycle to a side. Thus, both the material/eye-witnesses examined by the prosecution have deposed consistently that the offending vehicle was being driven at a high speed and in a zig-zag manner. As per the site plan Ex.PW6/A, the road on which the accident had occurred was a single road having no divider. The fact that the offending vehicle was being driven at a very high speed and in a zig-zag manner, especially on a road which did not even have a divider, is per se sufficient to hold that the said vehicle was being driven in a manner so rash as to endanger human life or personal safety of others or likely to cause hurt to any other person.
21. On the basis of the testimony of PW-2 and PW-3 and the other material on record, the prosecution has successfully established rashness on part of the accused in driving the Accent car in question at the time of the alleged accident as is required for the offence punishable under Section 279 I.P.C. Therefore, the third ingredient to bring home the guilt of the accused under Section 279 I.P.C. has been be proved by the prosecution.
22. In view of the aforesaid detailed discussion, this Court finds that the prosecution has proved the guilt of the accused in respect of the charge for the offence punishable under Section 279 I.P.C. beyond reasonable doubt.
State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 11 of 17 II. Charge under Section 338 of the I.P.C.
23. For bringing home the guilt of the accused in respect of the charge under Section 338 of the I.P.C., the prosecution was required to prove that (1) grievous hurt had been caused to the injured Ravinder @ Ravi and Sandeep and (2) the same was caused by the accused by doing an act so rashly or negligently as to endanger human life, or the personal safety of others.
24. As per the prosecution, both PW-2 Sh. Ravinder and PW-3 Sh. Sandeep had sustained grievous hurt as a result of the accident in question. PW-2 Sh. Ravinder and PW-3 Sh. Sandeep deposed that they had sustained injuries consequent to the accident in question and that they were taken to RTRM hospital. The prosecution has examined PW-5 Dr. S. Das, Medical Officer, RTRM hospital, who deposed that he had examined injured Sandeep and Ravi vide MLC No. 1980/08 (Ex.PW5/A) and MLC No. 1981/08 (Ex.PW5/B) respectively and that the nature of injuries on both the MLCs was grievous. The said witness was not cross-examined on behalf of the accused despite opportunity having been granted. Thus, his testimony remains unchallenged. As per their respective MLCs Ex.PW5/A and Ex.PW5/B, the patients Sh. Sandeep and Sh. Ravi had been advised X-ray of their right thighs. As per the MLC Ex.PW5/B of injured Sh. Ravi, there was a fracture in his right femur. Further, the doctor has therein opined the nature of the injuries of the accused persons to be "grievous". The said MLCs of the injured persons stand proved by the doctor PW-5, whose testimony is unrebutted. Thus, the fact that grievous hurt had been caused to the injured Ravinder @ Ravi and Sandeep stands proved beyond State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 12 of 17 reasonable doubt.
25. According to the testimony of the eye-witnesses/injured persons PW-2 and PW-3, as a result of the accident in question they had both fallen on the road and sustained injuries. In the MLCs Ex.PW5/A and Ex.PW5/B, the alleged history is recorded as "R.T.A." meaning road traffic accident. Further, in the said MLCs, the kind of weapon used has been opined to be "blunt". As per the MLC Ex.PW5/B of injured Sh. Ravi, on local examination, the doctor had noted a crush injurey on the right dersum. As already discussed above, the said MLCs have not been disputed by the accused. The cause of the injuries sustained by the injured Sh. Sandeep and Sh. Ravi has, thus, been established to be the accident in question. As already discussed above with respect to the charge under Section 279 I.P.C., the prosecution has established beyond reasonable doubt that the accident in question had been caused due to rash and negligent driving of the Accent car in question by the accused.
26. It, therefore, stands established by the prosecution that grievous hurt had been caused to the injured Ravinder @ Ravi and Sandeep due to the rash and negligent act of the accused. The accused is, accordingly, held guilty for the offence punishable under Section 338 I.P.C.
CONCLUSION
27. Accordingly, the accused is convicted for the offences punishable under Section 279 I.P.C. as well as Section 338 I.P.C.
State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 13 of 17
28. Personal bond under Section 437A Cr.P.C. furnished by the accused has been provisionally accepted with a direction to furnish surety bond by the next date of hearing.
29. List for arguments on the point of sentence on 07.08.2015.
Announced in open Court on 31.07.2015 (MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 31.07.2015 State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 14 of 17 IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-WEST), DWARKA COURTS, NEW DELHI Presided by: Ms. Manika STATE Vs. Sh. Rakesh Kumar, S/o Late Sh. Roshan Lal, R/o Village Shikar Pur, Police Station Chhawla, New Delhi.
FIR No. 18/2008 Police Station : Chhawla Under Section : 279/338 IPC Unique Case ID Number: 02405R0096442012 Judgment pronounced on : 31.07.2015 Arguments on sentence heard on : 07.08.2015 Order on sentence passed on : 11.08.2015 ORDER ON SENTENCE
1. Vide judgment announced in the open court on 31.07.2015, accused Rakesh had been convicted for the offences punishable under Section 279 IPC as well as Section 338 IPC in case FIR No.18/2008 police station Chhawla.
2. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for State and Sh. Subhash Yadav, learned State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 15 of 17 counsel for the convict on the point of sentence have been considered.
3. Learned Assistant Public Prosecutor for State submitted that the convict had been highly negligent and it was his rash and negligent manner of driving a vehicle on a public way which resulted into grievous injuries on the person of Sh. Sandeep and Sh. Ravi, who were co-users of the road in question. He has prayed for deterrent punishment.
4. On the other hand, learned counsel for the convict has prayed for a lenient view. He has submitted that the convict is a poor person; he is running a small-time business and earns only about Rs.10,000/- - 12,000/- per month. He submits that the convict is the sole bread earner of his family and has the responsibility of his old widow mother, wife and three school going children. He further submitted that the accused has faced the agony of trial for a period of about seven years. He also submitted that the convict has clean antecedents.
5. The convict comes from a modest background. He has a family of six, including himself, to provide for. He has already faced trial for a period of about six years. The prosecution has not come forward with any record of previous involvement of the convict in any criminal case. Considering the aforesaid facts, this Court does not deem it appropriate to award prison sentence to the convict.
6. Further, considering the fact that the injured persons sustained grievous hurt in the accident in question, the injured persons also deserve to be compensated suitably in terms of Section 357 Cr. P. C. However, while awarding compensation to the victims, not only the State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 16 of 17 nature and extent of their injuries but also the income and liabilities of the convict have to be kept in mind.
7. Accordingly, keeping in view all the relevant circumstances, the convict is sentenced to undergo imprisonment till the rising of the Court for the offence punishable U/s 279 IPC and to pay compensation of Rs.3,500/- each to the injured persons as provided under Section 357 Cr. P. C., for the offence punishable U/s 338 IPC. In default of payment of compensation amount, the convict shall undergo simple imprisonment for a period of seven (7) days.
8. Copy of this order be supplied free of cost to the convict.
Announced in open Court on 11.08.2015.
(MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 11.08.2015 State v. Rakesh FIR No. 18/2008 P.S.: Chhawla Page 17 of 17