Delhi District Court
State vs . Pradeep Kumar on 30 August, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST
SAKET COURTS, NEW DELHI
FIR No. 152/2006
P.S. Defence Colony
U/s 279/338 IPC r/w 3/181 and 185 M.V Act
State Vs. Pradeep Kumar
JUDGMENT :
a. Sl. No. of the case : 432/5
b. Date of Institution : 03.09.2006
c. Date of Commission of Offence : 14.03.2006
d. Name of the complainant : Sh. Kailash Chand
Sh. Ram Sahai
e. Name of the accused and his : Pradeep Kumar
parentage and address S/o Late Jaipal
R/o H.no. B63, Gali no.7,
Harijan Basti, Naseerpur,
Palam, New Delhi
f. Offence complained of : U/s 279/338 IPC r/w section
3/181 and 185 M.V Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 30.08.2013
i. Final Order : Acquitted
j. Date of such order : 30.08.2013
FIR NO. 152/2006 PAGE 1 OF PAGE 7
PS DEFENCE COLONY
1. The accused in this case was sent up for trial for the commission of offence u/s 279/338 IPC r/w section 3/181 and 185 M.V Act.
2. The facts in brief as per the prosecution story are that on14.03.2006, at about 9.20 p.m., the complainant namely Kailash Chand was going to Gurgaon in his car bearing no. HR26R8639 make Lancer of black colour. When he reached near AIIMS gate, Aurobindo Marg , accused came in his motorcycle bearing no. DL4SAB6510 make Bajaj Boxer from the side of AIIMS Gate no. 1, INA at a high speed and in a rash and negligent manner and struck against the car of the complainant due to which the accused along with is motorcycle fell down on the road. The accused along with the pillion rider namely Virender received grievous injuries. The accused along with the injured Virender were removed to AIIMS hospital by the complainant. Thereafter on the basis of statement of complainant, Investigating Officer prepared the rukka and got the present case FIR registered in PS. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested. After completing other formal investigation the challan was presented before the court for trial u/s. 279/338 IPC r/w section 3/181 and 185 of M.V. Act against the accused.
3. The accused appeared in the court and he was informed of the FIR NO. 152/2006 PAGE 2 OF PAGE 7 PS DEFENCE COLONY substance of the allegation against him, vide notice dated 19.12.2012 under section 279/338 IPC r/w section 3/181 and 185 M.V Act to which accused pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined only one witness namely Kailash Chand as PW1.
5. PW1 Kailash Chand has testified that on 14.03.2006, in between 9.00 to 9.30 p.m., he was coming towards Gurgaon in Lancer car bearing no. HR26R8639 which was being driven by him. His employers/owners of the car Mr. Amrit Kiran Singh and his wife Smt. Farah Singh were sitting on the back seat. PW1 further testified that when he reached near AIIMS hospital at Aurobindo Marg, at that time two persons sitting on a motorcycle bearing no. DL4SAB6540 were coming from the wrong side and hit against his car as a result of which the motorcycle riders fell down and received injuries. PW1 further testified that his employer called the police. Police came to the spot and recorded his statement vide Ex. PW1/A. Thereafter their car was taken to the police station and the same was seized by the police vide memo Ex. PW1/B. The offending vehicle i.e. motorcycle was also seized in his presence vide memo Ex. PW1/C. PW1 further testified that he could not identify the motorcycle rider/its occupants as the matter was seven years old and due to lapse of time, he forgotten the face of the motorcycle FIR NO. 152/2006 PAGE 3 OF PAGE 7 PS DEFENCE COLONY riders/occupants. PW1 further testified that he had shown to the police the place of accident. PW1 further testified that he had not witnesses the person who was driving the motorcycle at the time of accident.
PW1 was cross examined by Ld. APP as he was resiling from his statement given earlier to the police. In his cross examination, PW1 has testified that he could not identify the person who was driving the offending motorcycle. PW1 further testified that the police had taken the bike rider to the hospital in his presence as they had suffered injuries. PW1 further testified that the motorcycle rider was drunk at that time when it hit them and they came on the wrong side.
6. After recording the evidence of PW1, the PE was closed for the reason that the complainant himself did not support the prosecution case and failed to identify the accused. Further the injured namely Virender could not be produced by the prosecution as he remained untraceble despite the service of DCP concerned.
7. After closing of prosecution evidence, statement of accused was recorded U/s 313 r/w. 281 Cr.P.C. In his statement, accused denied to have committed the offence and claimed to has been falsely implicated in this case. He further denied to lead any defence evidence.
FIR NO. 152/2006 PAGE 4 OF PAGE 7 PS DEFENCE COLONY
8. I have heard the arguments of Ld. APP for the State as well as Ld. Counsel for the accused and have also perused the entire record.
9. The accused has been charged with the offence u/s 279, 338 of IPC r/w section 3/181 and 185 M.V Act. The combined reading of these sections would show that a rash or negligent act is one of the essential ingredients which is required to be proved by the prosecution to establish the charge. While section 279 IPC renders punishable an act of rash or negligent driving which is dangerous to human life or limb, the same act would attract punishment u/s 338 IPC if indeed it results into injury to some person.
10. The term negligence has been defined by the Supreme Court in Mahadev Prasad Kaushik vs. State of UP(2009)2 SCC (Cr) 834 as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. Besides, such negligence as would justify a verdict of conviction must be culpable or of gross degree and not the negligence founded on a mere error of judgment or defect of intelligence. Rashness can be summed up as an act which is reckless or is done in a manner which is dangerous to public life. The mere fact that an accident has taken place or some persons have received injuries will not lead to any presumption of FIR NO. 152/2006 PAGE 5 OF PAGE 7 PS DEFENCE COLONY rash or negligent act on the part of the accused but will have to be established like any other fact. The injury so caused is not the determining factor. In a case under sections 338 and 279, of the IPC, there must be a definite finding that the driving was rash or negligent which resulted in the injury of the victim. Accused cannot be held guilty unless it is explained in what manner the accused was rash or negligent.
11. To prove its case against the accused, the prosecution has examined only one witness i.e. the complainant namely Kailash Chand as PW1. However in his testimony, he has failed to support the prosecution case. In his testimony, he has failed to identify the accused as the driver of the offending vehicle. PW1 was declared hostile by the public prosecutor. In his cross examination by Ld. APP, PW1 has stated that he could not identify the person who was driving the offending motorcycle.
12. Further in the present case, the prosecution could not produce the injured Virender before the court despite having received sufficient opportunities. The injured was also summoned through the Investigating Officer of the case as well as the DCP concerned, but without any avail.
13. Further, it is alleged that at the time of accident the accused was FIR NO. 152/2006 PAGE 6 OF PAGE 7 PS DEFENCE COLONY driving the offending vehicle without any driving licence and at that time, he was under the influence of liquor. But there is no evidence to prove this fact. No breath analysis test was conducted on the accused by the police. Even the medical report with regard to accused does not indicate as to what was the level of intoxication. There is no evidence to establish the quantity or level of alcohol which was consumed by the accused. This cannot be said to be a sufficient proof of the intoxication.
14. In these circumstances, it cannot be said with certainity that the accused has caused the accident on account of rash and negligent act. It may be a mere error of judgment or defect of intelligence.
15. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Pradeep Kumar is acquitted for the offence punishable U/s. 279/338 IPC r/w section 3/181 and 185 M.V Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 30.08.2013 Metropolitan Magistrate
South East/New Delhi
FIR NO. 152/2006 PAGE 7 OF PAGE 7
PS DEFENCE COLONY
FIR No.152/2006
PS Defence Colony
u/s 279/338 IPC r/w section 3/181 and 185 M.V Act 30.08.2013 Present: Ld. APP for the State.
Accused on bail with counsel.
Final arguments heard.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 279/338 IPC r/w section 3/181 and 185 M.V Act for which he stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 15,000/with one surety in the like amount. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
Documents, if any, be returned to the concerned person after cancellation of endorsements.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/30.08.2013
FIR NO. 152/2006 PAGE 8 OF PAGE 7
PS DEFENCE COLONY