Delhi District Court
State vs . Yudhishter on 16 October, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. YUDHISHTER
FIR No. 394/01
PS: MOTI NAGAR
U/S: 279/337/338 IPC
JUDGMENT
Sr. no. of the case : 649/2/10
Unique Case ID no. : 02401R0505722007
Date of commission of offence : 22.08.2001
Date of institution of the case : 04.12.2002
Name of the complainant : Sh. Deepak s/o Sh. Mohan
Lal Kaushik.
Name of accused and address : Yudhishter s/o Sh. Narender
Singh, r/o Village and PO
Shershah (Jatti), PS Kundli,
Dist. Sonepat, Haryana
Offence complained of or proved : U/s 279/337/338/427 IPC
Plea of the accused : Pleaded not guilty
Final order : Conviction u/s 279 and
337 IPC.
Acquittal u/s 338 and 427
IPC
Date on which reserved for judgment : 08.10.2015
Date of judgment : 16.10.2015
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, on 22.08.2001, the accused was driving bus no. DL-1PA-7931 on route no. 817. There was another bus of the same route near to the said bus. The accused Yudhishter was driving the bus in competition with the other bus and in attempt to overtake that bus from left side accused hit the left side (conductor side) of the bus FIR No. 394/01, PS Moti Nagar Page 1/16 against the wall of a school at Basai Darapur, Ramesh Nagar at about 07-07:15 AM. Due to the accident, the conductor side of the bus dragged against the wall of the school due to which wall railing of the school came inside the bus after breaking the window. A number of passengers sitting in the bus received various injuries due to the accident. Accordingly, after the investigation, police filed the present charge sheet against the accused.
2. Complete set of copies were supplied to the accused. After hearing arguments, notice U/s 251 Cr.P.C. was served upon the accused for trial of offence U/s 279/337/338/427 IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses.
4. PW1 Sh. Deepak deposed that on 22.08.2001, he boarded bus route no. 817 from Uttam Nagar going towards Sadar Bazar at 06.45 AM. It is stated that the bus no. DL-1PA-7931 was driven by accused Yudhishter. It is further stated by him that there was another bus of the same route and there was competition between both the buses, the accused driving the bus tried to overtake the bus from the left side of the another bus. The offending bus hit against the wall of the school at Basai Dara Pur, Ramesh Nagar, at 07-07.15 AM. It is stated by him that the accused was driving the bus at a high speed and was at fault as he was overtaking another bus from the left side despite the fact that there were number of passengers in the bus. Due to the accident, the conductor side of the bus dragged against the wall of the school due to which wall railing of the school came inside the bus after breaking the window. Due to this a number of passengers sustained grievous as well as simple injuries. This witness also sustained injuries on his chin and leg. It is stated that they were given first aid at Ramesh Nagar at a private clinic and thereafter were taken to DDU Hospital by the police.FIR No. 394/01, PS Moti Nagar Page 2/16
The statement of the witness is Ex. PW1/A. In his cross examination it is stated by this witness that he was sitting in a middle of the bus towards conductor side. It is stated by him that though there was a bus stand 200 metres before the wall of the school however, the bus did not stop at the bus stand. It was voluntarily stated by him that only the buses on another routes stopped at the bus stand. It is stated by him that the driver ran away from the spot and thereafter presented himself in the police station. It is stated by him that accused was driver of the bus at the time of the accident. It is stated by him that he boarded the bus from the front side and thus had the occasion to see the driver properly. He denied the suggestion that in order to avoid the major accident the accused had taken the vehicle towards left side resulting into the present accident. It is stated by this witness that he had seen the driver again in the police station after 15-20 minutes.
5. PW2 Sh. Ishwar deposed on the same lines as that of PW-1 Sh.
Deepak. In his cross examination it is stated by him that after the accident driver of the bus run away from the spot. But after 10-15 minutes he again came back at the spot. It is stated by him that accused was arrested by the police at the spot. It is stated by him that after this incident police had arrested the accused on the spot. It is stated by him that after the accident police had came to his house and shown him the photographs of the accused.
6. PW-3 Sh. Jeet Ram deposed that in the year 2001, he boarded bus route no. 817 from Raja Garden for Kashmere Gate. It is stated by him that he noted the number of the offending bus on the ticket which was supplied to the constable who came at the spot. It is stated by him that he cannot tell the vehicle which was overtaken by the driver of their bus and hit against the wall of the school at Basai Dara Pur, Ramesh Nagar. The railing of the wall entered in the bus and the passengers who were sitting on the left side of the offending bus sustained injuries as the glasses of the offending bus broke down. It is stated by the witness that he sustained injuries on his left eye brow and stitches were given by the doctor. He was medically examined at DDU Hospital. It is FIR No. 394/01, PS Moti Nagar Page 3/16 further stated by him that the driver of the offending bus was at fault but he had not seen the driver of the offending bus. This witness is cross examined by Ld. APP for the state. It is accepted by the witness that the accident took place on 22.08.2001 when he was in the bus no. DL-1PA-7931. It is denied by the witness that accused Yudhishter was driving the bus at the time of the accident. It is voluntarily stated that he could not identify the driver. It is accepted by the witness that the left side of the bus was dragged against the wall and the passengers sitting therein sustained injuries. In his cross examination it is stated by him that the driver of the bus ran away from the spot.
7. PW-4 HC Rajpal was the Duty Officer on 22.08.2001 and he exhibited on record copy of FIR as Ex.PW4/A (OSR) and endorsement on the rukka as Ex.PW4/B.
8. PW-5 Ct. Rakesh Kumar stated that on 22.08.2001 on receipt of DD regarding accident, he alongwith HC Satbir Singh went to near Basai Darapur School, Najafgarh Road. It is stated that they saw one bus bearing no. DL-1PA-7931 (route no.817) as struck against the wall of the school. It is stated that injured had already been removed to the hospital. It is stated that he remained at the spot. It is stated that IO came back and gave him rukka for registration of FIR. On that he got registered the FIR and handed over the original rukka and copy of FIR to the IO. The bus was taken into possession vide seizure memo Ex.PW5/A. It is stated by him that accused was not arrested in his presence and he does not know if the accused was present in the Court. This witness was cross-examined by Ld. APP for the State. On that it is accepted by him that the accused was arrested in his presence vide arrest memo Ex.PW5/C and his personal search was conducted vide memo Ex.PW5/B. It is accepted by him that he cannot say if the accused is present in the Court or not. He further accepted that the accused is present in the Court. It is accepted by him that he could not narrate the fact of the arrest of accused and could not identify him due to lapse of time. In his cross examination it is stated by him that the driver was not present at the spot and he had fled away.
FIR No. 394/01, PS Moti Nagar Page 4/169. PW-6 Sh. Roop Kishan deposed on the same lines as that of PW-1 Sh. Deepak. However, he cannot identify the accused due to lapse of time.
10. PW-7 Smt. Indro deposed on the same lines as that of PW-1 Deepak. In her cross examination she denied the suggestion that the driver was not driving the bus at the time of the accident. It is stated by her that as soon as the accident had taken place the accused had ran away from the spot.
11. PW-8 Mohd. Anis was also a passenger in the bus and received injuries in the accident. However, he could not tell the manner of accident and he also failed to identify the accused.
12. PW-8 Retd. ASI Devender Kumar deposed that on 22.08.2001 he conducted the mechanical inspection of Tata Bus no. DL-1PA-7931 on the request of HC Satbir Singh. The Bus was found no fit for road test. His detailed report is already Ex. PW8/A.
13. PW-9 Smt. Harsh Prabha Rattan, the then Principal of Sarvodaya Kanya Vidyalaya, Basai Darapur exhibited on record the certificate issued by her regarding damage to the boundary wall of the school due to hitting by a bus as Ex.PW9/A.
14. PW10 Shakuntala is the registered owner of bus bearing no.
DL-1PA-7931, who exhibited on record her reply to the notice U/s 133 MV Act as Ex.PW10/A wherein she stated that offending bus was driven by accused Yudhishter at the time of accident. She exhibited on record superdarinama as Ex.PW10/B vide which she got released the offending bus on superdari. She exhibited on record photographs of the bus as Ex.P1 to P4. It is stated by her that on 22.08.2001 she received a call from driver/accused Yudhishter regarding an accident on that she reached Moti Nagar police station.
15. PW11 Dr. Shahbuddin, the then Ld. MM exhibited on record TIP proceedings conducted by him in respect of accused Yudhishter as Ex.PW11/A wherein the accused had refused to participate in the TIP stating that he had been seen by the witness on the spot and the application of IO seeking copy of the proceedings as Ex.PW11/B. FIR No. 394/01, PS Moti Nagar Page 5/16
16. PW12 Dr. Ajay Sharma, the then Medical Officer exhibited on record MLC no.5478 of patient Braj as Ex.PW12/A, MLC no.5292 of patient Vinod Yadav as Ex.PW12/B, MLC no. 5299 of patient Jeet Ram as Ex.PW12/C, MLC no. 5298 of patient Ravinder as Ex.PW12/D, MLC no.5296 of patient Jitender as Ex.PW12/E, MLC no. 5297 of patient Roop Kishan as Ex.PW12/F, MLC no. 5294 of patient Vishwas as Ex.PW12/G, MLC no. 5293 of patient Mahender Yadav as Ex.PW12/H and MLC no. 5218 of patient Indro as Ex.PW12/I.
17. PW13 ASI Suresh Kumar exhibited on record the copy of entry made by him at serial no.2336 in register no. 19A as Ex.PW13/A vide which HC Satbir deposited bus bearing no.DL-1PA-7931 in Malkhana.
18. PW14 ASI Adhish Kumar is the duty officer and stated that on 21.08.2001 he received the information regarding an accident in respect of which DD no. 24-A was recorded. However, he could not bring the record of DD as the same has been weeded out vide order dated 16.03.2005 of DCP West. He marked the said letter as Mark PW-14/A. It is stated by him after having seen the copy of DD on record that the same is not in his handwriting.
19. PW-14 ASI Raj Kumar stated that on 22.08.2001 he was posted as Incharge of PCR van Power 17 at Moti Nagar Circle. It is stated that on receiving of a call he along with other staff reached at Najafgarh Road, Basai Dara Pur, Government School at 07.15 AM. It is stated that he saw that one bus no. DL-1PA-7931 of route no. 817, CNG, had hit the wall of the school and due to which some passengers sustained injuries. It is stated that he took the injured to DDU Hospital in PCR Van and got them admitted and thereafter he came back on his duty in the circle. It is stated that his statement was recorded by the IO in this regard.
20. PW15 ASI Satbir Singh stated that on 22.08.2001, on receipt of DD no. 24 A regarding accident he alongwith Ct. Rakesh went to Basai Dara Pur, Sarkari School, near Gurudwara and found one bus bearing no. DL-1PA-7931 in accidental condition which hit against the wall of school. Complainant Deepak who was in the bus was also present at FIR No. 394/01, PS Moti Nagar Page 6/16 the spot. It is stated by him that he recorded the statement of Deepak as Ex.PW1/A, who stated that he was going to his duty and boarded the bus from Uttam Nagar, the bus was driven by the driver in a rash manner and crossing the another bus and hit against the wall. It is stated that he was informed that injured have been taken to DDU hospital. It is stated that he left Ct. Rakesh at the spot and himself went to DDU hospital and met with one injured namely Haneesh and came back to the spot. It is stated that thereafter, he prepared rukka Ex.PW15/A and handed over the same to Ct. Rakesh for registration of FIR. Ct. Rakesh went to the PS along with copy of the rukka and returned at the spot along with copy of the FIR and handed over the same to this witness. It is stated that he prepared the site plan Ex.PW15/B at the spot. Bus was taken into possession vide seizure memo Ex.PW5/A. This witness correctly identified the accused. It is stated that complainant Deepak identified the accused as driver of the bus. It is stated that the accused was arrested vide arrest memo Ex.PW5/C and his personal search was conducted vide memo Ex.PW5/D. It is stated that he had given the notice u/s 133 MV Act to Smt. Shakuntala Devi, owner of the bus and she replied on the notice that the bus was being driven by accused Yudhishtar on the day of accident. The notice is Ex.PW10/A. It is stated that the driving license of the accused was taken into possession vide memo Ex.PW15/C. It is stated that after completion of the proceedings they returned to the police station and case property was deposited in malkhana. It is stated that mechanical inspection of the bus was conducted at the police station by ASI Devender and he has given report Ex.PW8/A. It is stated that he collected the result of the MLC of the injured persons. After completion of the investigation challan was prepared and filed by him. This witness correctly identified the photographs of the offending bus as Ex.P1 to P4 which was taken into possession in accidental condition. In his cross examination it is stated by him that he reached the spot with Ct. Rakesh on his scooter. It is stated that PW Deepak met him on the spot and he recorded statement of PW Deepak. It is stated that FIR No. 394/01, PS Moti Nagar Page 7/16 thereafter he went to the hospital where he met injured Haneesh. It is stated by him that on the day of incident he had not recorded the statements of other injured persons. It is stated by him that he recorded statement of other injured persons on 22.08.2001, 05.09.2001, 12.09.2001 and 15.10.2001. It is stated that when he returned back to the spot from the hospital owner of the vehicle Smt. Shakuntala was present at the spot to whom he gave a notice u/s 133 MV Act and she replied the same on the same date at the hospital. He could not tell the exact time when owner of the vehicle reached the spot. It is accepted by him that original tehrir and site plan are in different hand writing. It is stated by him that the same might be prepared by his companion. It is stated by him that site plan is in his own handwriting however, tehrir is not in his handwriting. It is accepted by him that statement of witness namely Chanchal, Indro and Brijesh were written by the same person who had written the tehrir. It is stated by him that tehrir is in the handwriting of Ct. Rakesh. It is stated by him that he had not mentioned in the challan that Ct. Rakesh had written the tehrir on his dictation. It is stated by him that husband of the owner of the vehicle stood surety for the accused. It is stated by him that he do not remember that who had taken the bus to the police station from the spot.
THE DEFENCE :
21. Statement of accused was recorded U/s 313 Cr.P.C, wherein he pleaded innocence and stated that he has been falsely implicated in the present case. It is stated by him that he was taken to police station by one Mr. Jagbir Singh to stand surety for someone however, at the police station said Jagbir Singh and police officials made him sign on certain documents. Thereafter, the police officials arrested him. It is stated by him that he was not driving the bus in question at the time of the accident. Accused opted not to lead defence evidence. THE ARGUMENTS:
22. Ld. APP for State has argued that the victims/eye witnesses have supported the prosecution and their testimonies have remained FIR No. 394/01, PS Moti Nagar Page 8/16 unrebutted. That on a combined reading of testimony of prosecution witnesses, offence U/s 279, 337, 338 and 427 IPC are proved beyond doubt.
23. On the other hand, Ld. counsel for accused has stated that there is no legally sustainable evidence against the accused. It is argued that the accused has been falsely implicated in the present case as he was having valid commercial driving license so that MACT claim may be awarded to the victims to be paid by the insurance company. It is further argued that a number of injured/eye witnesses have failed to identify the accused as the driver of the offending vehicle. It is argued by him that there are a number of contradictions in the testimony of the prosecution witnesses as PW-1 Deepak says that accused ran away from the spot and after some time return back to the police station. On the other hand PW-2 Ishwar says that the accused ran away from the spot but after some time he return back to the spot. It is further argued that police had not conducted investigation in a fair manner as it is accepted by PW-2 Ishwar that photograph of the accused was shown to him at his house. It is further argued that it is accepted by the IO that tehrir was not written by him which shows that investigations were not carried out as claimed. On these grounds it is prayed that accused may be acquitted from all the charges in the present case.
THE FINDINGS:
Offence u/s 279, 337, 338 and 427 IPC:
24. Arguments adduced by Ld. APP and Defence Counsel have been heard and evidence and documents on record are carefully perused.
25. The prosecution in this case had to prove the following :
1. Firstly, the identity of the accused as driver of the offending vehicle; AND
2. Secondly, the accident has taken place due to rash and negligent driving by the accused, causing various injuries to the victims.
3. Thirdly, due to the act of the accused mischief of more than Rs. 50/- has been caused as he damaged the wall of the FIR No. 394/01, PS Moti Nagar Page 9/16 school.
26. In the present case factum of the accident has not been disputed.
Almost all the victims i.e. PW-1 Deepak, PW-2 Ishwar, PW-3 Jeet Ram, PW-6 Roop Kishan, PW-7 Indro and PW-8 Mohd. Anis have stated about the accident in question involving bus bearing no. DL-1PA-7931 running on route number 817. It is specifically stated by PW-1 and PW-2 that driver of the bus trying to overtake another bus of the same route from the left side and in the process he hit the bus against the wall of the school. Further, PW-3 Jeet Ram, PW-6 Roop Kishan, PW-7 Smt. Indro have specifically stated that the driver of the bus struck the conductor side/left side of the bus with the wall of the school. The wall of the school was a permanent structure and the same was always there. It is not a situation where some thing would have suddenly came in front of the offending bus. The act of the driver of the offending vehicle in hitting the bus against the wall in itself shows the rashness and negligence on his part. Since, the fact that the driver of the offending vehicle hit the same while overtaking another bus from left side into the wall of a school has been proved on record nothing else is required to prove the rash and negligent driving on the part of the driver of the offending bus. Thus, it can be safely held that driver of the offending bus was driving the same in the rash and negligent manner.
27. The injuries sustained by the various victims have been proved on record as MLCs of the victims have been proved on record by PW-12 Dr. Ajay Sharma. As per the MLCs victim Vinod Yadav, Jeet Ram, Ravinder, Jitender, Roop Kishan, Vishwas, Mahender Yadav received simple injuries. No opinion could be given in respect of injuries sustained by victim Braj and Indro. Though, as per the record available on the file one of the vicitm namely Aneesh s/o Kalwa has suffered grievous injury as he sustained fracture in right arm. However, the prosecution has not examined any witness before court to prove on record that victim Aneesh had suffered grievous injury. Thus, the prosecution has failed to prove beyond reasonable doubt that the victim Aneesh received grievous injury.
FIR No. 394/01, PS Moti Nagar Page 10/1628. This court would like to refer to a judgment of the Hon'ble Supreme Court of India elaborating the requirements of section 304-A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case.
Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.FIR No. 394/01, PS Moti Nagar Page 11/16
29. Though, charge u/s 427 IPC has also been framed in the present case, however, the charge u/s 279/337 IPC and 427 IPC cannot sustain together as the mens rea required for commission of offence u/s 427 IPC is opposite to the mens rea required for commission of offence u/s 279/337 IPC. It is required by section 427 IPC that mischief has to be done and mischief is defined u/s 425 IPC which says that whoever intend to cause or knowing that he is likely to cause wrongful loss or damage to the public or to any person causes the destruction of any property. Thus, the mens rea required for commission of offence of mischief is intention or knowledge while the mens rea required for commission of offence u/s 279/337 IPC is rashness and negligence. There is no evidence on record to show that accused had intended to cause damage to the wall of the school or he had the knowledge that by overtaking another bus from the left side he would likely to cause damage to the wall of the school. Thus, ingredients to prove offence u/s 427 IPC have not been satisfied.
30. The main contention on behalf of the accused in the present case is that he was not driving the offending bus at the time of accident in question. It is argued by Ld. Defence Counsel that except three victims (PW-1 Deepak, PW-2 Ishwar and PW-7 Smt. Indro) no other has identified the accused as driver of the offending bus. It is further stated that PW-2 Ishwar has stated that police had shown him the photograph of the accused at his residence. It is argued that the husband of the owner of the vehicle namely Sh. Jagbir Singh has falsely implicated the accused in connivance with the police officials.
31. It has been categorically stated by PW-1 (Deepak), PW-2 (Ishwar) and PW-7 (Smt. Indro) that the accused Yudhishter was driving the vehicle at the time of accident in question. It has also been deposed by PW-10 Smt. Shakuntala owner of the offending bus that accused Yudhishter was driving the same at the time of accident. It is categorically stated by PW-10 Smt. Shakuntalal that in fact accused Yudhishter called her regarding the accident, on that she reached the police station Moti Nagar. The testimony of PW-1, PW-7 and PW-10 FIR No. 394/01, PS Moti Nagar Page 12/16 inspires confidence due to the following reasons:-
i. PW-1 Deepak has categorically identified the accused as driver of the offending vehicle. It is further explained by this witness that he had boarded the bus from front side, therefore, he had the occasion to see the face of the driver properly. No suggestion was given to this witness that he was not the passenger of the bus at the time of accident in question. Similarly, PW-7 Smt. Indro has also categorically identified the accused as driver of the bus. There was no reason for these witnesses to falsely implicate the accused in the present case. The testimony of these witnesses inspire confidence and they appears to be reliable witnesses. ii. PW-3 Jeet Ram, PW-6 Roop Kishan and PW-8 Aneesh could not identify the accused as driver of the offending vehicle as they have not seen the driver of the offending vehicle at the time of accident. Just because a few victims had not seen the driver of the vehicle does not mean that other victims are falsely implicating the accused. iii. Further even if the testimony of PW2 Ishwar is not taken into account still the unrebuted testimonies of PW-1 Deepak and PW-7 Smt. Indro are sufficient enough to prove identity of the accused as driver of the offending vehicle. It was held in Pal Singh And Ors. vs State Of U.P. AIR 1979 SC 1116 that:
"after the High Court had believed the eye witnesses No. 1 and 2, and having found that their testimony was absolutely credit worthy and truthful, it could not have rejected the prosecution case merely because some of the eye witnesses mentioned in the F.I.R. were not examined."
iv. Owner of the offending bus PW-10 Smt. Shakuntala w/o Sh. Jagbir Singh has categorically stated that accused Yudhishter was driving the offending bus at the time of accident in question. Her testimony remained unrebutted even after cross examination. It is argued by Ld. Defence Counsel that accused has been falsely implicated in the present case by husband of the owner of the offending vehicle FIR No. 394/01, PS Moti Nagar Page 13/16 namely Sh. Jagbir Singh. It is claimed that said Jagbir Singh had taken the accused to the Police station to stand surety for someone and had falsely implicated him in the present case, so that compensation may be given to the victims by MACT Court from the account of insurance company as accused was having valid driving license. This defence of the accused is false as no such suggestion was put to PW-10 Smt. Shakuntala in her cross examination. Further, the accused has not proved on record his above stated defence by leading cogent evidence. It has no where been stated by the accused that he has made any complaint against said Jagbir Singh for falsely implicating him in the present case. The defence raised by the accused is absolutely false as there is enough material on record to show that accused is having good relations with the family of PW-10 Smt. Shakuntala w/o Sh. Jagbir Singh as Mr. Bunish Shokeen s/o Sh. Jagbir Singh, who stood as surety for the accused in his surety bond u/s 437A Cr.P.C. filed on 24.09.2015 is none else but the son of Sh. Jagbir Singh and Smt. Shakuntala Devi (PW-10). This Court came to know this fact as with the superdarinama, copy of the ration card of Smt. Shakuntala Devi, PW-10 has been filed on record which shows that Sh. Jagbir Singh is the husband of Smt. Shakuntala Devi and they are having two daughters namely Meenakshi, Switi and one son namely Bunish. The address of Sh. Bunish Shokeen and Smt. Shakuntala Devi is also same i.e. Village Nilothi, Nangloi, Delhi.
v. The contradiction in the testimony of PW-1 and PW-2, as it is stated by PW-1 Deepak that after the accident accused ran away from the spot and later on appeared in the police station, on the other hand it is stated by PW-2 Ishwar that the accused returned back to the spot itself, is not a material contradiction to throw away the entire case of the prosecution as it is possible that the accused would have run away from the spot but PW-1 might have seen him at the police station only.
vi. It is to be noted that when an application for conducting TIP was FIR No. 394/01, PS Moti Nagar Page 14/16 moved he made a statement though without oath before the then Ld. MM Dr. Shahbuddin that he does not want to take part in TIP as he was seen at the spot by the witnesses. This statement of the accused clearly suggests that he was driving the offending vehicle at the time of accident.
32. In view of the above stated facts and discussion it can be held beyond reasonable doubt that accused Yudhishter was driving the offending bus at the time of accident in question.
33. The contention of Ld. Defence Counsel that rukka was not written by IO PW-15 ASI Satyabir Singh in his own handwriting, thus, the investigation was not conducted in a proper manner is not material. As it is established principle of law that the complainant/victim shall not suffer due to the conduct of the IO and the accused shall not be allowed to take benefit of the faulty investigation of the IO. It has been held by the Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
"The settle position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
34. In the present case PW-1 and PW-7 are natural witnesses present on the spot, they themselves received injuries in the present accident. Their statements are clear, consistent and implicating the accused. On scrutinizing the evidence of such witnesses, it is proved that accused was driving the vehicle in a rash and negligent manner and caused FIR No. 394/01, PS Moti Nagar Page 15/16 the accident in question, as the offending bus hit the wall of a school while accused was trying to overtake another bus of the same route from left side. It is not the case of the accused that PWs have any enmity with the accused so that they would falsely implicate the accused.
35. Further the statements of the eye witnesses are consistent with the evidence of other witnesses i.e the police officials as well as the medical evidence on all material particulars.
36. The contradictions pointed out by Ld. Defence Counsel are not material as testimony of PW-1, PW-2 and PW-3 were recorded in the Court after almost 4 years in the Court and testimony of PW-7 and PW-8 were recorded almost 6 years of the incident.
37. Therefore, apart from certain minor inconsistencies, which are likely in the evidence of a natural witnesses and due to lapse of time since the date of accident and examination of witnesses in court, the testimonies of PWs are coherent and consistent and are implicating the driver of offending vehicle in question.
38. Thus, in the considered view of this court, all the ingredients of offence punisbale under Section 279 IPC and 337 IPC are satisfied. As such accused Yudhisther s/o Sh. Narender Singh is convicted for the offences U/s 279 and 337 IPC. Since, prosecution failed to prove on record that any of the victim had received grievous injury hence, accused is acquitted for commission of offence punishable u/s 338 IPC. Accused is also acquitted for commission of offence punishable u/s 427 IPC as requisite mens rea i.e. intention or knowledge of causing damage to the wall has not been proved.
39. Copy of the judgment be given free of cost to the accused.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 16.10.2015 MM-04 (WEST)/DELHI
Containing 8 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 394/01, PS Moti Nagar Page 16/16