Delhi District Court
State vs . Vinod Kumar Gupta on 18 December, 2021
IN THE COURT OF MS. SHIVLI TALWAR
METROPOLITAN MAGISTRATE - 06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
FIR No. 146/2005
PS - Civil Lines
U/s - 279/338 IPC
State Vs. Vinod Kumar Gupta
JUDGMENT
(a) Criminal Case No. 291085/2016
(b) CNR No. DLCT02-000221-2006
(c) Date of 08.05.2005 commission of offence
(d) Name of the Sh. Vakil Ahmed s/o Sh. Rafiq Ahmed r/o Gali No. 8, complainant near Masjid, Village Jagatpur, Delhi.
(e) Name of the Vinod Kumar Gupta s/o Sh. Kishori Prasad Gupta r/o accused person(s), Raheem Pur, PO Raheem Pur, PS Jagdish, Distt. his parentage and Vaishali, Bihar.
residence
(f) Offence(s) Section 279/338 of The Indian Penal Code, 1860 complained of or proved
(g) Plea of the accused Pleaded not guilty
(h) Final Order Acquitted
(i) Date of institution 09.06.2006 of case
(j) Date when 15.12.2021 judgment was reserved
(k) Date of judgment 18.12.2021 Brief reasons for the decision of the case: -
1. The factual matrix of the case of the prosecution in a nutshell is that FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 1 of 26 on 08.05.2005 at 6:00 AM at Outer Ring Road, Near Monastery Market, Delhi within the jurisdiction of PS Civil Lines, the accused namely Vinod Kumar Gupta was found driving Tata Tempo bearing registration no. HR 38F 1936 (hereinafter referred to as "the offending vehicle") in a rash or negligent manner so as to endanger human life and personal safety of others and at the aforesaid date, time and place while driving the aforesaid vehicle in aforesaid manner, hit against cyclist Vakil Ahmad and caused grievous injury to the complainant/injured Vakil Ahmad and thereby committed the offences punishable u/s 279/338 IPC.
2. Since the accused remained untraceable despite issuance of NBWs, process u/s 82 Cr.P.C. was issued against him on 27.04.2006. The accused surrendered before the Court on 04.05.2006, pursuant to which the IO interrogated and arrested him. He was then admitted to bail by the Court. Pursuant to investigation, the charge sheet for the offences u/s 279/ 338 IPC was filed against the accused. On finding a prima facie case to proceed against the accused, cognizance of the said offences was taken on 09.06.2006 by Ld. Predecessor of this Court.
The provisions of Section 207 Cr.P.C. were duly complied with and after hearing arguments on the point of notice, the accused was served notice u/s 279/338 IPC vide order dated 04.03.2010 by Ld. Predecessor of this Court to which the accused pleaded not guilty and claimed trial.
3. In support of its version, the prosecution has examined eleven witnesses. PW1 Vakil Ahmad (complainant), PW2 Retd. SI Vedpal Singh (Duty Officer), PW3 Ashok Kumar Aggarwal (superdar of the FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 2 of 26 offending vehicle), PW4 ASI Sukhvir Singh, PW5 Rajneeti Prasad, PW6 Retd. ASI/ Tech. Devender Kumar, PW7 ASI Devender, PW8 ASI Subhash, PW9 Retd. SI Sakhawat Khan (2 nd IO), PW10 Insp. Vijay Kumar (1st IO) and PW11 Anil Kumar (Record Clerk, Sushruta Trauma Centre, Delhi)
4. The record transpires that during the course of trial, the accused admitted 9 photographs of the offending vehcicle and the bicycle alongwith negatives Ex. P1 (colly), MLC No. 63578/05 of patient/ complainant Vakil Ahmad Ex. P2, Result of X-ray report on MLC No. 63578/05 dated 08.05.2005 Ex. P3 and TIP proceedings of accused dated 16.05.2006 Ex. P4 and the examination of formal witnesses qua such documents was accordingly dispensed with.
5. Thereafter, the prosecution evidence was closed on 17.02.2020 and the accused was examined u/s 313 Cr.P.C. on 22.03.2021 wherein all incriminating evidence was put to him. He submitted that he is innocent and has been falsely implicated in the present case. He further submitted that he was not driving the offending vehicle at the alleged date and time. He stated that he wishes to lead defence evidence however despite repeated opportunities, no evidence was led by the accused in his defence and on 05.10.2021, he submitted that he does not wish to lead evidence in his defence. His separate statement to this effect was recorded before the Court.
6. At the very outset of deliberations, a brief recapitulation of the testimonies of prosecution witnesses becomes indispensable.
7. PW1/ complainant Vakil Ahmed deposed that he was working as FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 3 of 26 driver for BSES. On 08.05.2005 at about 5:30 AM (inadvertently written as PM), he was going to Daryaganj after purchasing some vegetables from the market. When he reached Monastery Market at about 6 AM, suddenly a tempo bearing registration no. HR 38 F 1936 which was being driven by its driver in a high speed and in a rash and negligent manner came from the side of Chandgi Ram Akhada and hit his bicycle from behind. Due to the said accident, he fell down on the road and sustained injuries. PCR Van took him to hospital where police recorded his statement Ex.PW1/A. At his instance, IO prepared the site plan Mark S-1. The witness correctly identified the accused before the Court. The witness also correctly identified the photographs of offending vehicle Ex. P-1 to P-10 and stated that the photographs are of the vehicle which was being driven by the accused at the time of accident due to which he sustained injuries.
During cross-examination by Ld. Defence Counsel, the witness deposed that his cycle had come under the left rear wheel of the offending vehicle due to which it got damaged and was seized by the police. He further deposed that someone had called the police. He further deposed that driver of the offending vehicle immediately left the place after accident and that the driver did not help him after the accident. He deposed that the driver did not come down after the accident to see him. He further deposed that he identified the accused before the Court after two months when he had come to the Court to depose. He further deposed that he made his statement to police at PS. He further deposed that he had noticed/ seen the accused when he left the place after accident. He denied the suggestion that no accident had taken place due to rash and negligent driving of the accused. He FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 4 of 26 further denied the suggestion that the accident had taken place due to his fault. He further denied the suggestion that he had not seen the accused when he left the place after accident and that he had falsely implicated the accused to get compensation from MACT Court.
8. PW2 Retd. SI Vedpal Singh is the Duty Officer. He deposed that on 08.05.2005 at about 6:55 AM, a PCR call from Control Room regarding accident near Chandgi Ram Akhada, Kashmere Gate, ISBT was received. Same was recorded vide DD no. 7A in daily diary register. Copy of said DD is Ex. PW2/A (OSR). The said call was assigned to SI Vijay Dahiya with Ct. Sukhbir for necessary action. He deposed that on that day, his duty hours were from 1AM to 9AM. At about 08:55 AM, Ct. Sukhbir produced one rukka before him sent by SI Vijay Dahiya, on the basis of which, he recorded the FIR of the present case and copy of the same is Ex. PW2/B (OSR). After registration of FIR, copy of FIR and original rukka was handed over to Ct. Sukhbir for handing over to the IO for necessary action.
The witness was not cross-examined on behalf of defence despite opportunity given.
9. PW3 Ashok Kumar Aggarwal is superdar of the offending vehicle vide superdarinama Ex. PW3/A. He deposed that he had produced the documents relating to the offending vehicle which were seized by the police vide seizure memo Ex. PW3/B. The original driving license of the accused is Ex. P-11. The photocopy of RC is Ex. P-12 (OSR) (Colly). Photocopy of fitness certificate and insurance documents are Mark X. He deposed that he cannot produce the original of fitness FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 5 of 26 certificate and insurance documents of the offending vehicle as they have been destroyed. He deposed that he received notice u/s 133 MV Act and his reply to the same is Ex. PW3/C from point X to X1.
During his cross-examination by Ld. Defence Counsel, the witness deposed that in the year 2005, he owned around 3-4 vehicles. He was having a Manager namely Avdesh of his Transport business. There were around 3-4 drivers who were working in his Transport business at that time. He denied the suggestion that it was not fixed that which driver would drive which of the vehicle. He deposed that his company was not having any written proof to show that accused was working as a driver in his company at the time of alleged incident. He denied the suggestion that at the time of incident, accused was not working as a driver or that he was not driving the offending vehicle. He also denied the suggestion that accused was falsely implicated in the present case.
10. PW4 ASI Sukhvir Singh deposed that on 07.05.2005, his duty hours were from 8PM to 8AM. On 08.05.2005 at about 6AM, a call was marked to IO Vijay Dahiya regarding accident in front of Monastery Market, Outer Ring Road. At about 6:30AM, he alongwith IO reached the spot where they saw offending tempo bearing registration no. HR 38F 1936 and a bicycle which was beneath the front tyres of the offending vehicle. They inquired and searched witness or eye-witness but they did not find anyone. IO received a call from Trauma Centre that the injured of the said accident was got admitted there. IO left him at the spot and went to the hospital. After an hour, IO came back to the spot alongwith the injured Vakil Ahmed. PCR Van also came at the spot. IO asked him to bring a private photographer. After 20 minutes, FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 6 of 26 he alongwith the photographer namely Gyan Chand having shop in front of Sant Parmanand Hospital reached the spot and the photographer clicked the photographs. IO prepared the rukka and sent him to the police station to get the FIR registered. After 45 minutes, he reached back to the spot with the copy of FIR and original rukka. IO seized the offending vehicle and the bicycle and prepared seizure memo. Seizure memo of bicycle is Ex. PW4/A and seizure memo of the offending vehicle is Ex. PW4/B. The witness correctly identified the photographs of victim vehicle as well as offending vehicle Ex. P-1 (colly). He deposed that IO recorded his statement u/s 161 Cr.P.C. and that IO also recorded the statement of HC Ashok who had duty on PCR Van. Ld. Defence Counsel did not object the identity of offending vehicle and the bicycle during the testimony of PW4.
During his cross-examination by Ld. Defence Counsel, the witness deposed that the statement of victim was recorded by the IO on the spot. He deposed that he finally left the spot at about 10:30AM. He deposed that the victim also left the spot at the same time. He deposed that IO did not record the statement of any public person in his presence. He denied the suggestion that he did not accompany the IO at the spot. He further denied the suggestion that no photographs were taken in his presence.
11. PW5 Rajneeti Prasad deposed that was working as Manager in Bokaro Carrying Corporation having its transit officer in Ghaziabad, UP on the date of incident. He deposed that Bokaro Carrying Corporation had its booking office at Sadar Bazar, Delhi. He deposed that he used to sit in the booking office. He further deposed that the offending FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 7 of 26 vehicle was owned by Sh. Ashok Kumar Aggarwal, Proprietor of Ashok Transway who told him about the accident. He deposed that he did not know the accused present in the Court.
Upon permission obtained from the Court, Ld. APP cross-examined the witness and confronted him with his statement recorded u/s 161 Cr.P.C. as he had turned hostile. During his cross-examination by Ld. APP for the State, the witness deposed that he had not given any statement dated 07.03.2006 to the police. He further deposed that he did not know anything about the present matter except the fact that Ashok Kumar Aggarwal told him regarding the accident. He denied the suggestion that he did not get offending vehicle released on superdari. He deposed that Ashok Kumar Aggarwal used to tell him about his driver Gupta ji. He deposed that he did not have any personal knowledge regarding the accident by the alleged accused person. He denied the suggestion that he was deposing falsely as he was won over by the accused.
The witness was not cross-examined on behalf of defence despite opportunity given.
12. PW6 Retd. ASI/ Tech. Devender Kumar deposed that on 10.05.2005, he conducted the mechanical inspection of the offending vehicle at the request of IO SI Vijay Kumar. His detailed report regarding the same is Ex. PW6/A, as per which front bumper of the offending vehicle was scratched from left side, front glass was broken and front wheel axle beam was scratched from front side. The vehicle was fit for road test.
During his cross-examination by Ld. Defence Counsel, the witness FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 8 of 26 deposed that there were scratches only on the said vehicle and they may be caused even by hitting a bicycle. He deposed that he could not tell the reason for breaking of the glass of the said vehicle. He denied the suggestion that the scratches were not fresh. He also denied the suggestion that he did not conduct the inspection of said vehicle and that the report was prepared in a mechanical manner.
13. PW7 ASI Devender deposed that on 04.05.2006, he joined the investigation with the IO and they both attended the concerned court where the accused surrendered. Thereafter, IO ASI Sakhawat Khan inquired from accused after taking permission from Court. Thereafter, accused was arrested vide arrest memo Ex. PW7/A and his personal search was conducted vide memo Ex. PW7/B. Disclosure statement of accused was also recorded vide memo Ex. PW7/C. DL of accused was seized vide memo Ex. PW7/D. Accused was granted bail by the Court. The witness correctly identified the accused before the Court.
During his cross-examination by Ld. Defence Counsel, the witness deposed that it might have taken about one hour at the court in examining the accused. He further deposed that he had read the disclosure statement before signing it. He denied the suggestion that no disclosure statement was given by accused or that it was recorded by IO himself.
14. PW8 ASI Subhash deposed that on 30.05.2005, Ashok Aggarwal, the owner of offending vehicle came to PS Civil Lines where IO served him notice u/s 133 MV Act. IO also seized the documents of the said vehicle like RC, permit, fitness and insurance certificate which was FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 9 of 26 provided by Ashok Aggarwal. The said documents were seized vide memo Ex. PW3/B. During his cross-examination by Ld. Defence Counsel, the witness denied the suggestion that Ashok Kumar Aggarwal did not visit the PS in his presence. He deposed that the photocopies of documents were provided by Ashok Aggarwal to the IO and that Ashok Aggarwal visited PS at about 2PM and left PS in about one hour.
15. PW9 Retd. SI Sakhawat Khan is the 2 nd Investigating Officer. He deposed that on 18.11.2005, IO of the present matter got transferred and the present file was marked to him for further investigation and he perused the file. He deposed that he made efforts to trace the accused and on 25.03.2006, he obtained NBW against accused. On 27.04.2006, he got the proceedings u/s 82 Cr.P.C. conducted against accused. On 04.05.2006, the accused surrendered before the Court and after obtaining permission from Court, he interrogated the accused and thereafter arrested him and conducted his personal search. He also seized his driving license and recorded his disclosure statement. Thereafter, the accused was released on bail. After completion of investigation, he prepared the challan and filed the same before Court. The witness correctly identified the accused present before the Court.
During his cross-examination by Ld. Defence Counsel, he deposed that he did not move the application for TIP of accused. He further deposed that on the next day of bail of accused, complainant brought accused to PS and stated that accused was willing to settle the matter with him, wherein complainant identified the accused and he recorded FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 10 of 26 his statement. He deposed that he did not remember whether he took the accused to Tihar Jail for his TIP proceedings due to lapse of time of around 15 years. He denied the suggestion that accused did not give his disclosure statement. He deposed that he gave notice u/s 133 MV Act to the registered owner. He denied the suggestion that accused has been falsely implicated at the instance of complainant for the purpose of compensation.
16. PW10 Inspector Vijay Kumar is the 1st IO. He deposed that on 08.05.2005, he was on emergency duty on intervening night of 07- 08.05.2005. On 08.05.2005, at about 06:55AM, DO of Civil Lines handed over to him DD no. 7A regarding accident near Chandgi Ram Akhara, ISBT, Kashmere Gate. Thereafter, he alongwith Ct. Sukhbir visited the spot i.e., near Monastery Market of the carriage way of ISBT Kashmere Gate and found the offending vehicle standing in accidental condition. He deposed that he saw that bicycle was struck between the two wheels of the said vehicle in the front side. He deposed that he had neither found the injured nor any public person. Thereafter, some passerby informed him that injured was taken to the hospital by PCR Van. Thereafter, he kept Ct. Sukhbir in the guard of offending vehicle and left for hospital and collected the MLC of injured Vakil Ahmed bearing alleged history of RTA (U/o blunt) and declared fit for statement. Thereafter, he recorded his statement regarding the incident and endorsed it Ex. PW10/A. Thereafter, he came back to the spot and made his best efforts to find out independent witness, however, no public persons were found. Thereafter, he called private photographer for taking photographs of the spot and same were taken. Thereafter, he prepared rukka Ex.
FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 11 of 26 PW10/B and handed it to Ct. Sukhbir for registration of FIR and the same was registered. In the meantime, injured came to the spot from the hospital and he prepared the site plan Ex.PW10/C at his instance. Thereafter, Ct. Sukhbir prepared seizure memo of offending vehicle and bicycle of injured. Thereafter, he recorded the supplementary statement of injured regarding preparation of site plan and he released him from the spot. He also recorded the statement of private photographer. Thereafter, he came back to the PS and deposited the case property in malkhana and recorded statement of Ct. Sukhbir u/s 161 Cr.P.C. Thereafter, he issued notice to the owner of offending vehicle namely Sh. Ashok Kumar to find out the driver of the offending vehicle. The said notice is Ex. PW10/D. Sh. Ashok Kumar replied to the notice that on the date of accident, the said vehicle was being driven by accused Vinod, however, he did not disclose anything regarding the whereabouts of accused Vinod. However, he produced copy of the DL, RC, permit, fitness and insurance of the accused and prepared seizure memo. During investigation, he got the offending vehicle mechanically inspected by the mechanical Ins. M.V.I Devender. Thereafter, he got the opinion of the injury from the concerned hospital which was opined as grievous. Thus, he added section 338 IPC. Thereafter, he got transferred and file was handed over to MHC(R) PS Civil Lines. The witness correctly identified nine photographs of the offending vehicle as well as the bicycle Ex. P-1 (colly).
During his cross-examination by Ld. Defence Counsel, the witness deposed that he had found the name of owner of the offending vehicle through mobile number mentioned/printed on the offending vehicle.
FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 12 of 26 He deposed that he contacted the owner of the offending vehicle on the same day by phone of the PS. Then, he deposed that he had not contacted the owner on the same day and that he had contacted him after 2-3 days of the incident. He deposed that owner of the offending vehicle visted the PS on 30.05.2005 and he served notice u/s 133 MV Act to the owner in PS itself. He further deposed that the earlier owner of the vehicle did not visit the PS. He denied the suggestion that owner did not visit the PS for more than 22 days as he did not know the driver of the vehicle. He further denied the suggestion that he told the owner of offending vehicle that the vehicle would not be released till the particulars of driver/accused are not furnished. He further denied the suggestion that owner of the offending vehicle furnished wrong particulars of the driver to him. He admitted that owner of the offending vehicle produced the coloured copy of DL of accused to him. He deposed that he had not asked the owner about the appointment letter and salary documents of the driver and about the duration of employment of the driver with him. He further deposed that he had not shown the photocopy of driving license of the accused to the complainant. He deposed that the complainant has not told the description of accused/driver. He further deposed that the complainant had visited the place of occurrence after he reached there. He further deposed that when he recorded the statement of complainant in the hospital, he was under treatment. He deposed that he did not know when complainant got discharged from the hospital and that he cannot tell the exact time when complainant reached at the spot. He denied the suggestion that he had not reached the spot and he recorded the statement of complainant in the PS. He deposed that he had recorded FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 13 of 26 the statement of the photographer, however, he did not remember the name of photographer. He deposed that when he reached the spot, he recorded the particulars of the public persons whom he inquired, however, no public person disclosed anything about the accident. He denied the suggestion that photographs Ex. P-1 (colly) are not of the spot. He further denied the suggestion that the present case has been filed for the purpose of getting the claim from MACT. He further denied the suggestion that he told the complainant that till the time the name of accused/driver is not furnished/ known, he will not be able to get compensation from MACT.
17. PW11 Anil Kumar, Record Clerk, Sushruta Trauma Centre, deposed that he was working in the said hospital since 2000. He was deputed by Medical Record Officer of Trauma Centre to depose in the Court today on behalf of Dr. Sriniwas as he had left the services of the said hospital and his present whereabouts were not known. He deposed that he can identify the signature and handwriting of Dr. Sriniwas as he had worked with him and had seen him writing and signing during the ordinary course of their duties. The witness was shown MLC No. 63578/05 of patient Vakil Ahmed dated 08.05.2005 and he identified the signatures of Dr. Sriniwas at point A wherein he gave the opinion on nature of injury as grievous on the basis of MLC and X-ray report as mentioned therein. The said MLC is Ex. PW11/A. The witness was not cross-examined on behalf of defence despite opportunity given.
18. This is the entire evidence on case record.
FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 14 of 26
19. Ld. APP for the State has contended that the presence of accused at the spot of incident is established as all the prosecution witnesses have correctly identified him before the Court. It is further contended that the prosecution has established the guilt of accused beyond all reasonable doubts and therefore, the accused deserves to be convicted for the offences in question.
20. Per contra, Ld. Defence counsel contended that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubts as prosecution has failed to establish the presence of accused at the spot of incident and consequent rashness and negligence by him while driving the offending vehicle. Accordingly, prayer is made for acquittal of the accused.
21. I have given a considered thought to the rival submissions made by Ld. APP for the State and Ld. Defence Counsel keeping in view the material available on the judicial file.
22. The accused has been charged with the commission of offences u/s 279/338 IPC.
To prove the case against the accused, the prosecution was required to prove the following facts:
(i) The factum of accident and the identity of accused being the driver of the offending vehicle;
(ii) That the accused caused the accident by his rash or negligent driving at a public place;
FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 15 of 26
(iii) That the rash or negligent driving of the accused resulted in grievous injuries to the complainant/injured.
23. The Court shall now discuss the evidence vis-à-vis each essential ingredient of the offences alleged against the accused.
24. FACTUM OF ACCIDENT AND IDENTITY OF THE ACCUSED The first question which arises for consideration before the Court is as to whether the alleged accident actually took place and if the answer is in affirmative, then whether the accused was driving the offending vehicle at the time of accident or not.
The record reflects that the accused has been identified by PW1 complainant/injured Vakil Ahmed, PW7 ASI Devender, PW9 Retd. SI Sakhawat Khan and PW10 Inspector Vijay Kumar to be the one who caused the accident. PW1/ complainant Vakil Ahmed had categorically in his deposition stated that on 08.05.2005 at about 06.00 AM near Monastery Market, a tempo bearing registration no. HR 38 F 1936 which was being driven by its driver in a high speed and in a rash and negligent manner came from the side of Chandgi Ram Akhada and hit his bicycle from behind, due to which he fell down on the road and sustained injuries and PCR Van took him to hospital where police recorded his statement Ex.PW1/A. During his cross-examination, PW1 complainant/injured deposed that his bicycle had come under the left rear wheel of the offending vehicle due to which it got damaged. He further deposed that driver of the offending vehicle did not come down after the accident to help him.
FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 16 of 26 He further deposed that he had noticed/seen the accused when he left the place after accident.
The MLC of the injured PW1 Ex.P2 and the result of X-ray on the said MLC Ex. P3 is placed on record and the same was admitted by the accused in his statement u/s 294 Cr.P.C. Thus, the testimony of the injured qua the injuries received upon his person duly stands corroborated with the MLC and result of X-ray on the said MLC placed on record. The photographs of the offending vehicle Ex P-1 to Ex. P-10 were shown to the witness and he correctly identified the offending vehicle and stated that it was being driven by the accused when it hit his bicycle.
Ld. Defence Counsel has argued that since PW1/complainant has himself deposed that the offending vehicle hit his bicycle from behind and the driver immediately left the place after the accident, there was no occasion for the complainant to see the driver of the offending vehicle. It has been further pointed out by Ld. Defence Counsel that PW10 Inspector Vijay Kumar, during his cross-examination on behalf of defence, deposed that the complainant has not told the description of accused/ driver of the offending vehicle to him.
On the other hand, Ld. APP for the State has pointed out that the accused has admitted his TIP proceedings dated 16.05.2006 Ex. P4 in his statement recorded u/s 294 Cr.P.C. The same reflect that the accused refused to participate in the TIP proceedings because he stated that the complainant had seen him at the site of incident. Ld. APP for the State has also drawn the attention of the court to the testimony of PW6 Retd. ASI/ Tech. Devender Kumar who proved the mechanical FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 17 of 26 inspection report of the offending vehicle Ex. PW6/A. Perusal of the said report reflects that it is stated that front bumper of the offending vehicle was scratched from left side, front glass was broken and front wheel axle beam was scratched from front side. The same corroborates the testimony of PW1/complainant, who during his cross-examination deposed that his bicycle had come under the left rear wheel of the offending vehicle.
Thus, the TIP proceedings of accused as well as the mechanical inspection report of the offending vehicle Ex. PW6/A clearly establish the factum of accident as well as the fact that accused was driving the offending vehicle at the time of accident.
25. RASHNESS OR NEGLIGENCE:
Now after having decided that the accident actually occurred and that the accused was driving the offending vehicle at the time of the accident, the next question to be decided by the Court is as to whether the accused was driving the offending vehicle in a rash and negligent manner at the relevant point of time.
The Hon'ble Supreme Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh, (2000) 7 SCC 72 defined the term "rash and negligent driving". It was held that:
"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 recklessness and with indifference as to the consequences. Criminal negligence is the failure FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 18 of 26 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 caution".
In order to prove its case, it was imperative for the prosecution to prove not only that the accused was driving the offending vehicle at the time of accident, but also that it was being driven with rashness and negligence on the part of the accused which resulted in grievous injuries to the complainant.
The testimony of PW1/ complainant does not elaborate or bring forth the act of the accused which can be construed as rash or negligent in as much as he has merely stated that on the alleged date, time and place, the offending vehicle which was being driven by its driver in a high speed and in a rash and negligent manner came from the side of Chandgi Ram Akhada and hit his bicycle from behind, due to which he fell down on the road and sustained injuries.
It is settled law that the prosecution has to stand on its own legs to substantiate the allegations as set out in the FIR. No liability can be fastened on the accused merely on the basis of an accident. The prosecution has to be prove that accident took place due to rash and negligent driving of the accused. Thus, the witnesses are required to expound upon the manner in which the vehicle was being driven. It is required from the witness to elucidate upon the alleged act or omission amounting to culpable rashness and negligence. The element of the rashness and negligence on the part of the accused is to be FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 19 of 26 proved by leading cogent evidence to that effect. A mere deposition to the effect that the vehicle was being driven in a rash and negligent manner would not suffice. The manner in which the vehicle was being driven needs to be duly explained. Whether the accused was driving the offending vehicle in a zig zag manner or in some other negligent manner has not been brought on record. The subjective opinion of the witness qua rash and negligent driving cannot substitute the objective criteria for deciding the essential element of rash and negligent act by the accused required for constituting the offence u/s 279 IPC.
In the present case, the complainant has only made a bald statement to the effect that the accused was driving the offending vehicle in a rash and negligent manner. No positive evidence was led by the prosecution to prove the manner of driving of the vehicle by the accused.
Reference is made to the case titled as "Vinod kumar vs. State"
2012 (1) RCR (Criminal) 567, wherein Hon'ble High Court of Delhi held as under:
"No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW10 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 20 of 26 which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
There is nothing on record to even remotely suggest the speed at which the offending vehicle was travelling at the relevant point of time. In a scenario, where neither the alleged rashness and negligence was brought forth in the evidence, nor the speed of the offending vehicle is clearly deducible, it would not be justifiable to inculpate the accused on the basis of such feeble evidence. Be that as it may, it is imperative to make an observation that high speed by itself cannot be accepted as an incidence of rashness and negligence.
In the case of "State of Karnataka v. Satish" (1998) 8 SCC 493, the Hon'ble Supreme Court held that, "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 it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 21 of 26 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 loquitur"."
On this aspect, reliance is also placed on judgment titled as "Abdul Subhan vs. State (NCT of Delhi)" 133 (2006) DLT 562, wherein the Hon'ble High Court of Delhi has held that:
"I may also note that I am of the view that the testimony of PW 3 head constable Munim Dutt, even if taken to be entirely true only leads to the conclusion that the vehicle driven by the present petitioner was being driven at a highspeed. This in itself does not mean that the petitioner was driving the vehicle rashly or negligently."
The Court can also not lose sight of the fact that PW1/complainant has deposed that the offending vehicle which was being driven at a high speed and in a rash and negligent manner hit his bicycle from behind. Thus, it is not possible for the complainant to have seen the speed of the offending vehicle at the time of accident since he was purportedly hit from behind and there could not have been any occasion for him to have seen the speed of the offending vehicle or the manner in which it was being driven at the time of accident unless he had eyes on the back of his head which is not possible nor has any other evidence or explanation been brought forth by the prosecution regarding the same.
It has also been argued by Ld. Defence Counsel that no other public witness, except the complainant himself has been examined by the prosecution in support of its case, despite their availability at the place FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 22 of 26 of occurrence.
In the present case, no plausible explanation has been put forth by the prosecution for failure to join public witnesses during the investigation, despite their availability. IO Inspector Vijay Kumar has categorically deposed that he recorded the particulars of the public persons whom he inquired, however, no public person disclosed anything about the incident. Admittedly, independent public persons were present at the spot, however, no sincere efforts were made by the IO to persuade them to join the investigation and no written notice was served upon any of the public persons to join the investigation. It has also not been mentioned as to what action was taken against those persons who refused to join the investigation.
It is also crucial to note that the factum of the existence / non-- existence of the traffic signal at the spot of the accident has also not been brought forth in the evidence. The site plan is also silent about the existence of the traffic signal. For establishing culpable rashness and negligence of the accused, it was imperative for the prosecution to have explained as to whether there was any traffic signal at the spot. However, the same has not been done. It is also pertinent to note that the site plan does not reveal any skid marks on the road.
Another noteworthy fact which comes out for deliberation is that it is an admitted fact that the accident had occurred in the early morning i.e. at 6 AM. No evidence has been brought forth to the effect as to whether there was sufficient light at the time of accident or whether the area was well lit. Such an important circumstance cannot be FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 23 of 26 ignored. In such a scenario, a cloud of doubt arises over the alleged act of rashness and negligence on the part of the accused. The possibility of the accident having occurred due to low visibility cannot be ruled out. In such a scenario, rashness and negligence cannot be attributed to the accused.
At this stage, reliance is placed on the above quoted judgment of Hon'ble High Court of Delhi in case titled "Abdul Subhan vs. State (NCT of Delhi)" 133 (2006) DLT 562 wherein the court further observed:
"As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. Furthermore the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case."
26. It is further argued by Ld. Defence counsel that the mechanical inspection report Ex. PW6/A reflects that the front glass of the offending vehicle was broken, however, it is not possible for glass of a tempo to be broken upon hitting a bicycle from behind. Reference is made to the testimony of PW6 ASI Devender, who during his cross- examination by Ld. Defence counsel deposed that he could not tell the reason for breaking of the glass of the said vehicle. This Court finds FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 24 of 26 force in the said submission of Ld. Defence counsel as it is highly unbelievable that front glass of a tempo can be broken upon hitting a bicycle from behind. It is further argued by Ld. Defence counsel that the scratches upon the offending vehicle as reflected in the mechanical inspection report were not fresh in nature.
27. Ld. Defence counsel has further submitted that there is contradiction in the testimonies of various prosecution witnesses as to place where the statement of complainant was recorded. Reference is made to the testimonies of PW1, PW4 & PW10. Perusal of testimony of PW1 / complainant reflects that during his cross-examination by Ld. Defence counsel, the witness deposed that he made his statement to the police at PS whereas PW4 ASI Sukhbir Singh, during his cross-examination by Ld. Defence counsel deposed that statement of victim was recorded by the IO on the spot. On the other hand, PW10 IO/ Inspector Vijay Kumar, during his cross-examination by Ld. Defence counsel deposed that he recorded the statement of complainant in the hospital.
28. Another contradiction is pointed out by Ld. Defence counsel. It has been pointed out that PW4 ASI Sukhbir during his examination-in- chief deposed that IO came back from the hospital to the spot alongwith the injured Vakil Ahmed whereas PW10 IO/Inspector Vijay Kumar, during his cross-examination by Ld. Defence counsel deposed that complainant visited the place of occurrence after he reached there and that he cannot tell the exact time when complainant reached at the spot.
FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 25 of 26
29. Thus, there are a number of contradictions and lapses in the evidence brought forth by the prosecution. In the entire evidence as led by the prosecution, there is nothing on record to positively prove that the accident took place due to failure of the accused to exercise duty with reasonable and proper care and precaution guarding against injury to the public. Thus, in the absence of the same, the Court cannot resort to conjectures, assumptions and probabilities to ascribe rashness or negligence to the accused. Hence, in such a scenario, it clearly emerges that the prosecution has failed to prove the existence of rashness or negligence on the part of the accused beyond reasonable doubt, the benefit of which accrues to the accused.
30. In light of the discussion made above, this Court is of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubts. Accordingly, benefit of doubt is given to the accused and accused Vinod Kumar is hereby acquitted for the offences u/s 279/338 IPC.
31. The bail bonds, if any, furnished by the accused at the time of commencement of trial stand cancelled. Surety, if any, stands discharged. Documents, if any, shall be returned to its rightful owner, as per rules. Endorsement, if any, stands cancelled. Case property, if any, shall be disposed of as per rules after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court.
ANNOUNCED IN OPEN COURT on : 18.12.2021 (SHIVLI TALWAR) MM-06(C)/THC/Delhi/18.12.2021 FIR No. 146/2005 PS Civil Lines State vs. Vinod Kumar Gupta Page No. 26 of 26