Delhi District Court
State vs Kulwant Singh on 23 January, 2025
IN THE COURT OF RISHABH KAPOOR, JUDICIAL
MAGISTRATE FIRST CLASS -05 SOUTH-WEST DISTRICT,
DWARKA COURTS: DELHI
Digitally signed by
RISHABH RISHABH KAPOOR
State Vs. : Kulwant Singh KAPOOR Date: 2025.01.23
03:36:46 +0100
FIR No : 153/13
U/s : 279/337/338/429 IPC and 185 MV Act.
P.S. : Vikas Puri
JUDGMENT
1. Criminal Case No. : 11716/18
2. Date of commission of offence : 14.05.2013
3. Date of institution of the case : 06.06.2014
4. Name of the complainant : State
5. Name and parentage of accused : Kulwant Singh s/o Sh.
Roop Singh
6. Offense complained or n proved : U/s 279/337/338/429
IPC and 185 MV Act.
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 10.01.2025
9. Final order : Acquitted for offences
u/s 279/337/338/429 IPC
and Convicted for offence
u/s 185 MV Act
10. Date of final order : 23.01.2025.
1. The accused Kulwant Singh is facing trial for offences u/s 279/337/338/429 IPC and Section 185 MV Act. The genesis of the prosecution story is that on 14.05.2013 at about 3:15 PM at main Hastsal Road, H-Block Petrol Pump near backside of State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 1 Antriksh ApartmentS, Vikas Puri, Delhi accused was found driving a dumper truck bearing registration no. DL-1GB-5789 in a rash or negligent manner so as to endanger the human life and public safety of others and while driving the aforesaid vehicle in the aforesaid manner, the accused struck the vehicle against a Horse Buggi (Chariot) as a result of which complainant Sh. Firoz Khan sustained simple injuries and victim Sameer who was also riding on the aforesaid horse buggi sustained grievous injuries. The allegations are also to the extent that due to the incident in question, the horses annexed with the buggi also lost their lives. It is also in the allegations that the accused was driving the alleged offending vehicle during the relevant time period in a drunken state. The criminal law was set into motion after recording the statement of complainant/injured Firoz Khan and the investigation into the case began. During the course of investigation, the final opinion with respect to the injuries sustained by injured Firoz Khan and Sameer was obtained by the IO and the injuries suffered by Firoz Khan were opined as simple in nature and whereas, the injury suffered by victim Sameer were opined to be grievous in nature. It also transpired that the accused was driving the alleged offending vehicle under the influence of alcohol and thereafter the offences U/s 338 IPC and Section 185 MV Act were added in the FIR. It also surfaced during investigation that one of the horse who sustained the injuries during the incident in question also unfortunately passed away due to the injuries. The PMR of the deceased horse was also collected by the IO and after completion of investigation, the charge-sheet for offences u/s 279/337/338/429 IPC and 185 MV Act was submitted for trial of accused.
State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 2
2. Thereafter, the cognizance of the offences was taken by the Ld. Predecessor Court and on the basis of material available on record, notice of accusation for offences u/s 279/337/338/429 IPC and 185 MV Act was framed and served upon accused Kulwant Singh. Accused pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, prosecution has examined eight witnesses in all.
4. Thereafter, the statement of accused u/s 313 Cr.P.C. was recorded wherein all the incriminating circumstances were put to accused. The accused did not lead evidence in his defence.
5. Ld. APP for State has contended that the prosecution has established the guilt of the accused beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses and therefore, the accused deserves to be convicted for the alleged offences.
6. Per contra, Ld. Defence counsel has contended that the accused has been falsely implicated in the present case at the instance of the police. It has also been argued that the prosecution has failed to establish that the alleged incident had taken place due to rash and negligent driving of vehicle by the accused. It has also been contended that the alleged incident in question rather took place due to contributory negligence on the part of the complainant Firoz Khan who was not trained for plying the horse cart (Buggi). It has also been argued that the accused was never under the influence of alcohol during the relevant time. It has been contended that there exist serious State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 3 doubts in the prosecution story and hence, accused is liable to be acquitted for the alleged offences.
7. I have heard the rival contentions advanced by the prose- cution and defence and have also gone through the case record carefully.
8. Prior to delving into the merits of the contentions ad- vanced on behalf of parties, let us briefly discuss the testi- monies of the material prosecution witnesses.
PW-1 Sh. Firoz Khan was the complainant and one of the injured in the present case and has deposed that on 14.05.2013, at about 3.15 AM, he alongwith his colleague namely Sameer were coming back from a marriage on a horse cart (Buggi ) and when they reached at near Antriksh Apartments, Vikas Puri, one Dumper Truck bearing registration no. DL-1GB-5789 came from the back side and struck against their horse buggi. The driver of the offending truck was in a drunk condition and driving the vehicle in rash and negligent manner. He further deposed that the truck after crushing the horses and buggi entered into the Antriksh Apartments. He deposed that the name of driver of offending truck was revealed as Kulwant Singh. He correctly identified the accused in the court. He further deposed that he fell on the ground after the incident and victim Sameer who was sitting on the back side of the buggi sustained the grievous injuries due to said incident. He further deposed that due to the forceful struck of truck to the horses, his one horse died at the spot and another horse died after 02-03 days and his buggi got completely destroyed. He further deposed that someone called at 100 number and PCR Van came to the spot which took them to the Hospital. He State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 4 further deposed that next morning the police officials took him to the police station and there IO recorded his statement vide Ex. PW1/A and prepared the site plan at his instance. He identified the photographs of horses, baggi and offending vehicle in photographs vide Ex. P-1 to Ex.P-8. During his cross- examination, he stated that on the day of incident, he was driving the horse buggi. He admitted that a layman cannot drive horse bagghi. He also admitted that for driving the horse buggi training is also required. He deposed that he has been driving horse buggi for ten years and his age is about 20 years as on date. He deposed that he has not taken training from any training. He further deposed that he does not know whether his elder brother and uncle have taken training from any center or not. He denied that none of his family member has taken training from any authorized training center and that he has also not taken the training from them as he stated above. He admitted that he used to drive horse buggi alone for more than five years. He deposed that he came to know at the spot that the driver was in a drunk condition as he was not able to stand properly and he was not even fully conscious. He denied that the driver was not in drunken condition and he was fully conscious and he came to know about this fact from the concerned police officials. He admitted that injured Sameer was also trying to learn driving of the horse buggi. He admitted that injured Sameer used to go with him for the purpose of learning the driving of horse buggi and on the day of incident, he was sleeping in the back side of the buggi. He denied that he does not know how to drive horse buggi. He denied that he was trying to teach Sameer driving the horse buggi or at the time of incident, Sameer was driving the buggi and he could not properly drive and control the horse buggi and due to said State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 5 reason he suddenly took the buggi in front of the truck. He deposed that before 8.00 AM on same day, neither police inquired from him nor recorded his statement. He could not state that he does not remember whether the accused was medically examined or not. He denied that site plan was not prepared in his presence. He denied that the alleged incident took place due to negligence on the part of him and Sameer. He could not state the exact speed of the offending truck but he heard a noise. He admitted that he did not see the offending vehicle before the accident. He denied that offending vehicle was in normal speed.
PW-2 Sh. Jaspal Singh deposed that on 14.05.2013 he was working in company M/s Metro Waste Handling Pvt. Ltd. as a transport manager and supervisor of all vehicles registered in the name of the afore-mentioned company including the offending vehicle bearing registration no. DL1GB-5789 involved in the present case. On that day, he produced the documents relating to offending vehicle before the IO and IO seized the same vide seizure memo Ex. PW2/A. He further deposed that documents seized by IO were photocopy of RC of offending vehicle, photocopy of fitness certificate, photocopy of general power of attorney, photocopy of STA letter and original insurance of offending vehicle. He further deposed that IO also handed over him one copy of documents. He correctly identified the accused in the court. He further deposed that he also got released the offending vehicle on superdari vide superdarinama Ex.PW2/B. He identified the alleged offending vehicle in court and also the alleged accidental horse buggi in photographs Ex. P-1 to Ex.P-8).
PW-3 Sh. Sameer Khan, deposed that he does not State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 6 remember the date and time of accident. He further deposed that he alongwith his colleague namely, Firoz was coming back from a marriage and when they reached at Vikas Puri More, he was sleeping in the Buggi at that time. He could not state anything else about the present case and thereafter, he was cross examined by Ld. APP for the State and deposed that he is fifteen years of age and is an illiterate. He denied that he was not sleeping on the day of accident in said horse buggi. He admitted that on 13/14.05.13 at about 3.15 A.M., he along-with his friend Firoz Khan were coming back from the marriage in his horse buggi after completion of marriage program and that the said buggi was being driven by his friend Firoz Khan. He admitted that their horse buggi was going ahead and another horse buggi was following them which was driven by Inamul Haq or in both horse buggis there were two horses were employed in each of the buggi. He also admitted that both these horse buggis were owned by Inamul Haq. He denied that at about 3.15 Α.Μ., when they reached near Vikas Puri, Nala Wala Road, then one garbage carrying truck came in a high speed which was driven in zig zag manner and thereupon Firoz Khan tried to keep the horse buggi aside, however, the said truck driven by the accused hit the horse buggi from behind. He denied that the offending truck after crushing the horses banged into buggi and wall of Antriksh Apartments. He admitted that accident took place after accident took place while he was in sleep. He admitted that he alongwith Firoz Khan and two mares got injuries and after this, he became unconscious. He deposed that he got injured but he could not state how he suffered those injuries. He admitted that he regained his consciousness at DDU Hospital, however, at initial stage, he was in serious condition and was not able to see or speak at that time. He State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 7 admitted that he got recovered slowly. He admitted that from 14.05.2013 to 05.06.2013, he was admitted in DDU Hospital and taking treatment and thereafter, he was discharged from the DDU Hospital and was taking rest at his home. He admitted that thereafter, he went to police station along with his father and IO gave notice to his father and asked them to submit the documents and slips relating to treatment and about documents/bills of expenses incurred in treatment. He admitted that the two mares attached with the buggi had died as a consequence of the aforementioned accident. He admitted that IO recorded his statement. He admitted that he had seen the accused driver at the time of accident and he was driving the offending truck. He correctly identified the accused as the driver of the offending vehicle. He also identified the alleged offending truck in photograph Ex.P-X1 and also the accidental horses bugghi in photograph Ex.P-1 to Ex.P.8. He admitted that he could not recollect the facts relating to the accident in present case due to lapse of time. He denied that he had intentionally or deliberately suppressed the material facts as he had been won over by the accused. During cross examination, he stated that on the day of incident, they were returning after attending the program of marriage at Mangolpuri. He could not state the name and address of the persons whose marriage was solemnized. He deposed that he was sent by his employer namely Inam as a helper on wages of Rs.500/- per marriage. He deposed that he was traveling on first buggi which was driven by Firoz Khan. He admitted that the second buggi was just behind their buggi and behind the second buggi, one truck was also following. He deposed that he did not see the truck coming towards the buggi before the said accident. He admitted that he cannot tell in which manner the driver of the said truck State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 8 was driving. He admitted that he cannot state by whose negligent the accident took place. He could not state the number of the truck. He deposed that he firstly met the police at his home and his statement was recorded at his home in the presence of his mother and thereafter, he never met any police officials regarding the present case. He admitted that the statement recorded by the police officers was not read over to him or his mother. He also admitted that he did not sign any document. He denied that he did not see the accident as he was sleeping at that time. He denied that he did not see the accused/driver of the offending vehicle. He denied that he identified the accused as he has appeared before the Court as an accused in the present case.
PW-4 HC Satyaveer deposed that on 14.05.2013, he joined the investigation with the IO/ASI Rajbir vide DD no. 10A and during investigation, he along with ASI Rajbir reached at Main Hastsal Road opposite Antriksh Apartments, Vikas Puri. He deposed that they came to know that injured persons were taken to hospital and in the meantime, ASI Rajbir received information from DO that injured persons were admitted in DDU Hospital. He deposed that he remained present at the place of occurrence as per the instructions of IO and IO left for DDU Hospital. He deposed that after some time, IO came back to place of occurrence and took photographs of place of occurrence, truck/dumper and Ghoda Buggi. He further deposed that the dumper no. DL-1GB-5789 was seized by the IO/ASI Rajbir vide memo Ex. PW 4/A and IO handed over him rukka for registration of FIR pursuant to which, he went to the PS and got the FIR registered. He deposed that the ghoda buggi was seized by the IO vide memo Ex. PW 4/B and the documents of dumper were seized by the IO vide memo State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 9 already Ex. PW 2/A. He identified the alleged offending dumper truck and the accidental horse carts in photographs as Ex.P1 to Ex.P8. He deposed that the accused was arrested on the same day vide formal arrest memo Ex. PW 4/C. He also correctly identified the accused in court. During cross examination, he stated that he does not know the name of injured who were injured persons in the present case and or the persons sent to DDU Hospital. He deposed that injured persons were already sent to hospital before his arrival. He deposed that the arrest memo was prepared at PS. He denied that he was not arrested on the same day. He denied that he never joined the investigation or that accused has been falsely implicated in the present case.
PW-5 Retired ASI/Tech Devender Kumar deposed that on 16.05.2013, he had conducted mechanical inspection of TATA HYWA Dumper bearing no. DL-1GB-5789 on the request of IO/ASI Rajbir Singh of PS Vikas Puri and prepared his report which is Ex. PW5/A. PW-6 Dr. Yogendra Nath Maurya was examined as a witness being a person acquainted with the handwriting/signatures of PWs Dr. Ramesh, Dr. Rishi, Dr Rohit and Dr. Atul Singh Tomar. He identified the signatures of Dr. Rishi on MLC no.11903 dated 14.05.2013 which is Ex. PW 6/A. He also identified the signatures of Dr. Rohit Walia on MLC no. 11879 dated 14.05.2013 which is Ex. PW 6/B. He also identified the signatures of PW Dr Atul Singh Tomar in MLC no. 11878 dated 14.05.2013 which is Ex. PW 6/C. PW-7 Dr. Krishan Kumar Bansal deposed that he was posted at Govt. Veterinary Hospital Hastsal Uttam Nagar as Veterinary Assistant Surgeon in the year 2013 and he conducted the post-mortem examination vide serial no. 3309 of State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 10 mare white in color breed desi vide Ex. PW 7/A. He deposed that the animal was having a history of ill health from the last one and half month and no treatment was given under the instructions of qualified veterinary doctor. He deposed that when the animal was brought for PM it was weak, debilitated and putrefied and rigor mortis has passed away. He deposed that in his opinion, animal might have died due to some chronic infection. During cross-examination, he deposed that as the body was putrefied when it came to him and therefore, he cannot say that the same could have happened due to accident. He deposed that the owner of the mare had come to him and told him that his mare is not well as the accident had occurred few days back and thereafter, he asked him to bring the mare to the hospital to which he stated that mare cannot come. He deposed that later on, when the mare expired, then the IO along with owner came to him for the post-mortem of the mare and he was little hesitant in conducing post-mortem as the link between the mare died and the mare who got hit in the accident was not establishing apparently. He deposed that as per practice, he had to conduct the PM of the animals even if they were having any suspicion over the establishment of link with the FIR due to the circular issued to them by their department. He deposed that no apparent injury on the body of the mare could be found due to the accident and in his view, the mare had died due to infection which cannot be ascertained as the body of the mare got putrefied.
PW-8 Dr. Maninder Kaur Chhabra was examined as a witness being a person acquainted with handwriting and signatures of Dr. Abhishek on MLC no. 11903 dated 19.05.2013. She deposed that the aforesaid MLC was prepared by Dr. Ramesh and final opinion on the MLC was given by Dr. Abhishek as State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 11 "dangerous from surgery side" which is already Ex. PW 6/A.
9. The accused has admitted the fact of registration of FIR, certificate u/s 65 B of Indian Evidence Act, DD no.10A dated 14.05.2013, DD no. 11A dated 14.05.2013 and DD no. 12 A dated 14. 05.2013 which are Ex. A1 to Ex. A5 vide his statement u/s 294 Cr. PC and pursuant thereto, the formal witnesses with respect to the above-mentioned documents were dropped from the list of witnesses.
10. Having discussed the evidences on record, now let us advert ourselves to the merits of the present case. The accused has been indicted for offences u/s 279/337 /338 /429 IPC and Section 185 MV Act. The allegations with respect to offences u/s 279/337/338 IPC are to the extent that the accused was driving dumber truck no. DL-1GB-5789 on the given date, time and place in a rash or negligent manner so as to endanger human life and public safety of other and due to his aforesaid act of rash or negligent driving of vehicle, the accused struck the same against horse buggi on which complainant Firoz Khan and victim Sameer were riding, due to which the former sustained simple injuries and the latter sustained grievous injuries. The allegations against accused qua offence u/s 185 MV Act also relates to the appreciation of evidences and the discussion with respect to the offences u/s 279/337/338 IPC and it would be apposite to deal the same along with the discussion qua such allegations. The accused has been indicted for offence u/s 185 MV Act on the premise that on the given date, time and place, the accused was driving the alleged offending dumper truck in a drunken state.
State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 12
11. The position of law with respect to offense u/s 279 IPC is being discussed hereinafter;
It is a settled law that Section 279 IPC punishes the act of a person driving or riding a vehicle on a public way in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person. In the case of Abdul Subhan Vs. State (NCT of Delhi) 133(2006) DLT 562, the Hon'ble High Court of Delhi while discussing about the ingredients of section 279 has observed:-
"In Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved".
Further, what would constitute rash and negligent act has been described by the Hon'ble Supreme Court in the matter of Mohd. Aynuddin @ Miyan Vs. State of Andhra Pradesh de- cided on 28.07.2000, in the following words:-
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with reckless- ness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
10. Besides this, it has also been upheld in various decisions that evidence of high speed simpliciter, is not ipso facto proof of rashness or negligence.
State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 13 In the case of Rajiv Netra Panigrahi Vs. State of Orrisa decided on 20.07.1990, Hon'ble Orrisa High Court observed the following:-
"It is no doubt true, as contended on behalf of the peti- tioner and as supported by authorities, that high speed in driv- ing of a vehicle does not by itself amount to rash and negligent driving. If the accused driver was driving the vehicle on the highway and had negotiated the distance safely, it could not have been said that he was driving rashly or negligently be- cause of the high speed."
In the case of Kishore Chand Joshi Vs. State decided on 12.11.2018 Hon'ble High Court of Delhi has observed:-
"17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligence". High speed by itself may not in each case be sufficient to hold that a driver is rash or negli- gent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver."
The Hon'ble High Court of Delhi in Abdul Subhan (Supra), also observed that: "The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be re- garded as rash or negligent."
Further in Abdul Subhan (Supra), the decision of State of Karnataka Vs. Satish 1998 SCC (CRI) 1508 was also dis- cussed in which Hon'ble Supreme Court observed:-
"3. Both the trial court and the appellate court held the re- spondent guilty for offences under Section 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negli- gently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitor to hold the respondent guilty.
State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 14
4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness"
by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything es- sential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitor".
12. Besides, the ingredients mentioned above, the identity of the accused as driver of the vehicle must also be established separately by the prosecution in order to establish the guilt of the accused.
13. Whereas in order to hold a person liable for offences u/s 337/338 IPC, the prosecution is also duty bound to establish that the rash or negligent act done by the accused has led to simple or grievous injuries, as the case may be on the person of another. In other words, in order to hold a person liable for of- fences u/s 337/338 IPC, it is necessary to establish that the in- juries sustained by the victim are either simple or grievous, as the case may be and same were a resultant consequence of the acts of rash or negligence of accused. Pertinently, to hold a person liable for offence u/s 185 MV Act, the prosecution is re- quired to establish that a person driving the vehicle had in his blood, alcohol exceeding 30 mg. per 100 ml of blood detected in a test by a breath analyser, or in any other test including the laboratory test State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 15
14. In the present case, it is note-worthy to point out the fact that in order to establish the guilt of accused for alleged of- fences, prosecution is primarily relying upon the testimonies of PW-1 Firoz Khan and PW-3 Sameer Khan. Both PW-1 and PW- 3 are the alleged victims who have sustained the injuries during the incident in question. It is an undisputed fact that the identity of the accused as the driver of the alleged offending dumper truck is not in dispute in the present case and rather the de- fence of accused revolves around the fact that there was no rash or negligent act of driving on his part and that the accident in question has rather ensued due to the rash or negligent act on the part of the complainant and witness Sameer who were plying the horse buggi without proper training and skill. The careful perusal of testimony of PW-1 goes on to reveal that dur- ing the course of his deposition, he has simply stated that the accused was driving the dumper truck in a very rash and negli- gent manner. Pertinently, PW-1 could not explain the manner in which the accused was driving the dumper truck so as to im- pute a rash or negligent act of driving on his part. PW-1 has failed to explain as to in what manner the vehicle was being driven by the accused so as to constitute any rash or negligent on his part. This witness even could not explain the approxi- mate speed of the dumper truck during the time of incident so as to ascertain whether same was actually driven in a rash or negligent manner or not. PW-1 has conceded to the fact that the alleged accidental horse buggi was being driven by him at the time of accident and also the fact that no specialized train- ing was taken by him for plying the buggi. This witness has even though stated that he was driving the buggi since 10 years and his age as on the date of incident was 20 years, yet such explanation given by the witness does not seems convincing. It State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 16 is also pertinent to be mentioned herein that as per PW-1, he had learned driving the horse buggi at the age of ten years from his family members and since then, he has been driving the same but this version of PW-1 appears to be a self-harming ad- mission as he himself does not appear to be a person capable of driving the horse buggi after acquiring the proper training in that regard. This witness has also not ruled out the fact that vic- tim Sameer was also learning to drive the horse buggi during the relevant time period but denied that same was being driven by him at the time of incident. By overall appreciation and anal- ysis of deposition given by PW-1, it can be inferred that this wit- ness has failed to explain the mode and manner in which the accused was driving the vehicle during the relevant time so as to impute any rashness or negligence on his part, also that the possibility of the accident of having been taken place due to the contributory negligence on the part of PW-1 or PW-3 Sameer in driving the buggi without proper training and specialize skills cannot be completely ruled out. Further, from the testimony of PW-3 Sameer Khan it also surfaces that initially this witness has failed to depose anything regarding the facts of the present case and subsequently, upon being encountered with the ques- tions in the nature of cross-examination by Ld. APP for State, even though this witness has admitted to the fact that the al- leged incident had taken place due to the rash or negligent driv- ing of dumper truck by the accused but again this witness dur- ing the course of his cross-examination admitted that he is not in a position to depose as to whose rash or negligence the acci- dent had taken place as he was sleeping in the buggi at the time when the accident ensued. Therefore, it can be safely con- cluded that the testimonies of PW-1 and PW-3 are of no avail for establishing the necessary ingredients for holding the ac-
State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 17 cused liable for offence u/s 279 IPC. Further, apart from the tes- timonies of PW-1 and PW-3, the prosecution is also relying upon the fact that the accused was driving the alleged offending dumper truck in drunken state so as to impute the necessary rash or negligent act on his part. In this regard it is pertinent to mention that the offences prescribed u/s 279 IPC and Section 185 MV Act operates on different fields. The mere fact that a driver of a vehicle was found driving the vehicle under the influ- ence of alcohol more than the prescribed limits as laid down u/s 185 of MV Act, it cannot be presumed that such person was driving the vehicle in a rash or negligent manner. In order to hold a person liable for offence u/s 279 IPC, the prosecution is duty bound to establish that the vehicle was driven by the ac- cused in a rash or negligent manner so as to endanger human life and public safety of others. The mode and manner in which the vehicle was driven, the place where the accused was found driving the vehicle, the condition of the road, the permissible speed limits and other attending circumstances are necessary to be considered while deciding the fact as to whether a rash or negligent act of driving existed on the part of an accused or not. Undoubtedly, the fact that accused was found driving vehicle under the influence of alcohol beyond the permissible limits as specified u/s 185 MV Act is a relevant consideration to be looked into at the time of deciding the question of rashness or negligence on the part of the accused but without any other cor- roborative material establishing the existence of any rash or negligent act of driving on the part of accused, the accused cannot be held liable for offense u/s 279 IPC merely on the premise that he was found driving the vehicle under the influ- ence of alcohol, hence in the considered view of this court, the accused cannot held be liable for offense u/s 279 IPC merely on State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 18 the premise that the alleged offending dumper truck was being driven by him under the influence of alcohol at the time of the incident in question. Therefore, in the considered view of this court, the accused deserves to be acquitted for the offense u/s 279 IPC.
15. Moving further, since the discussion made above, suggests that the prosecution has failed to prove the guilt of the accused with respect offense u/s 279 IPC and for holding accused liable for offences u/s 337/338 IPC, prosecution was duty bound to establish that the simple injuries as sustained by victim Firoz Khan as reflected in MLC Ex.PW 6/B and the grievous injuries sustained by victim Sameer Khan as reflected in MLC Ex. PW 6/A were resultant consequence of rash or negligent driving of the dumper truck by the accused and rather the material on record does not completely ruled out the fact that the incident might have taken place due to contributory negligence on the part of victims Firoz Khan and Sameer in plying their horse buggi during the relevant time period, hence, the accused can- not be held liable for the offences u/s 337/338 IPC. Therefore, accused also deserves to be acquitted for offences u/s 337/338 IPC.
16. The accused has also been indicted for offence u/s 429 IPC. In order to hold a person liable for offense u/s 429 IPC, the prosecution is required to establish that the person so indicted for such offense has committed mischief by killing, maiming or rendering useless, any elephant, camel, horse, mule, Buffalo, bull, cow or ox of any value or any other animal to the value of Rs. 50/- or above. The offence of mischief has been defined u/s 425 IPC as an act done with an intention or knowledge to cause wrongful loss or damage to public or to any person leading to State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 19 destruction of any property or change in the property leading to deterioration of its value or utility. In the present case, in order to hold the accused liable for the offence u/s 429 IPC, it was in- cumbent on the part of the prosecution to establish that there was a intention or knowledge on the part of accused for causing wrongful loss to the complainant Firoz Khan or the owner of the horse buggies prior to causing the accident in question and that in furtherance of such knowledge or intention on his part, ac- cused indulged in committing the incident in question leading to the death of horse of the complainant or the owner thereof. Per- tinently, there is no evidence on record establishing the fact that there was any previous enmity or animosity between the com- plainant or the owner of the horse buggies and the accused due to which the accused was bent upon to kill the horses or dam- age the buggi for causing wrongful loss to the owner of the said horses or buggi nor there are any allegations to the extent that any such intention of killing the horses or damaging the buggi developed by the accused at the scene of incident due to any reasons whatsoever. There is also no material on record estab- lishing that the accused was within the knowledge of the fact that his act of driving the vehicle on road may lead to injury or damage to the horses which were annexed with the buggi, therefore, in the considered view of this court without establish- ing such essential ingredients qua the offence u/s 429 IPC, the accused cannot be held liable for such an offence. Pertinently, on the careful perusal of the case record and more particularly, on perusal of testimony of PW-7 Dr. Krishan Kumar Bansal it rather surfaces that during post-mortem examination of the de- ceased mare/horse the necessary linkage between the death of mare/horse and the alleged incident in question has not been established and rather as per PW-7, the animal might have died State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 20 due to some chronic infection, therefore, I am not hesitant to hold that the allegations leveled against accused qua offense u/s 429 IPC appears to be completely unfounded and the ac- cused deserves to be acquitted for such offence.
17. As far as offense u/s 185 MV Act is concerned, it is pertinent to be pointed out that the offences under The Motor Vehicles Act are the strict liability offences as same rules out the pre-ex- istence of any guilty intent or mens-rea on the part of the of- fender. In order to hold a person liable for offence u/s 185 MV Act, it is sufficient to establish that alcohol exceeding 30 mg per 100 ml of blood was detected in his blood during a test by breath analyser or in any other test including a laboratory test or that such person was under the influence of drug to such an ex- tent as to be incapable in exercising proper control over the ve- hicle. The perusal of MLC of accused which is Ex. PW 6/C re- flects that on the examination of accused the blood alcohol level to the tune of 141.0 mg/100 ml was found in the blood of ac- cused. The accused has not led any evidence discrediting the findings in the aforesaid MLC. The accused has made a eva- sive denial simplictor of the fact that the vehicle was driven by him under the influence of alcohol during examination u/s 313 Cr. PC. The mere findings qua the presence of alcohol beyond the specified limits under Section 185 (a) MV Act, in the MLC Ex. PW 6/A of accused is sufficient to hold him liable for the of- fence u/s 185 MV Act. Therefore, in the considered view of this court, the necessary ingredients for holding the accused liable for offence u/s 185 MV Act are fulfilled in the present case and hence the accused deserves to be convicted for such offense.
State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 21
18. In view of the forgoing discussion, the accused is hereby acquitted for the offences u/s 279/337/338 IPC. Whereas the accused is convicted for the offence u/s 185 MV Act.
19. Let the accused be heard separately on the point of sen- tencing.
Announced in the open Court on 23.01.2025.
(Rishabh Kapoor) MM-05 South West District Dwarka Courts, Delhi State Vs. Kulwant Singh FIR No.153/13 U/s: 279/337/338/429 IPC and 185 MV Act. 22