Delhi District Court
State vs . : Abdul Kadir on 15 December, 2021
IN THE COURT OF RISHABH KAPOOR:
METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Abdul Kadir
FIR No : 37/2016
U/s : 279/337/338 IPC & Section 134(a)/187 M.V. Act
P.S. : I.P. Estate
JUDGMENT:
1. Criminal Case No. : 303563/2016 2. Date of commission of offence : 21.01.2016 3. Date of institution of the case : 02.07.2016 4. Name of the complainant : State 5. Name of accused, parentage & : Abdul Kadir S/o Sh. Mohd. Jalil 6. Offense complained or proved : U/s 279/337/338 IPC & Section 134(a)/187 M.V. Act 7. Plea of the accused : Pleaded not guilty 8. Date on which order was reserved : 01.12.2021 9. Final order : Acquitted 10. Date of final order : 15.12.2021 1/10
1. The accused is facing trial for offences u/s 279/337/338 IPC and section 134(a)/187 M.V. Act. The genesis of the prosecution story is that on 20.01.2016, pursuant of receipt of information vide DD No.29A, PS I.P. Estate, the team of police went to spot of alleged occurrence at Ring Road, I.P. Flyover, ITO, Delhi where truck bearing no. HR 38Q 3369 alongwith accidental motorcycle number DL 2SN 2745 were found parked near the road. The team of police was informed that the injured persons were taken to LNJP hospital after which police went to LNJP Hospital where statement of injured Imran Khan was recorded. As per the statement injured Imran Khan, the accident was caused due to rash and negligent driving of truck no. HR 38Q 3369 which had dashed into the motorcycle of complainant due to which complainant alongwith his son Irfan Khan who was sitting on pillion seat of the motorcycle, had sustained injuries. Thereafter, criminal law was set into motion vide registration of present case FIR and during the course of investigation, the police served notice u/s 133 M.V. Act to the registered owner of the vehicle namely, Jasvir Singh who replied that the vehicle was being driven by accused Abdul Kadir on the relevant date. Thereafter, the alleged offending vehicle was taken into possession by the police after which its mechanical inspection was conducted. It is stated in the chargesheet that the alleged offending vehicle was being driven by accused Abdul Kadir at the relevant time. After completion of investigation, the chargesheet for offences u/s 279/337/338 IPC and section 134(a)/187 M.V. Act was submitted for trial of accused.
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 IPC and section 134(a)/187 M.V. Act was framed and served upon accused to which he pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, prosecution has examined seven witnesses in all. The accused admitted documents in the nature of mechanical inspection report of accidental motorcycle and alleged offending truck and MLCs of injured Imran and Irfan, DD No.29A dated 20.01.2016, notice u/s 133 M.V. Act given to registered owner, FIR No. 37/16 PS I.P. Estate and reply dated 22.01.2016 to 2/10 notice u/s 133 M.V. Act and the formal witnesses were accordingly dropped from list of witnesses.
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, therefore, the accused deserves to be convicted for the alleged offences.
6. Per contra, Ld. Defence counsel has contended that accused has been falsely implicated in the present case at the instance of the police. It has also been argued that the testimonies of the prosecution witnesses have not established either the identity of the accused as the driver of the alleged offending vehicle nor same has proved the commission of any rash or negligent driving by the accused. It has been contended that there exists serious doubts in the prosecution story and accused is liable to be acquitted for the alleged offences.
7. I have heard the rival contentions advanced by the prosecution and defence and have also gone through the case record carefully.
8. Prior to delving into the merits of the contentions advanced on behalf of par- ties, let us briefly discuss the testimonies of the material prosecution witnesses.
PW-1 Imran Khan is the complainant in the present case. He deposed that on 22.01.2016, he alongwith his son Irfan was going towards his home at Loni Ghaziabad on motorcycle no. DL 2SN 2745 and when he reached near I.P. Flyover, ITO, truck no. HR 38Q 3369 hit the motorcycle from behind due to which he alongwith his son fell down on road and the driver of the truck fled away from the spot. He identified accused Abdul Kadir as the driver of alleged offending truck. He stated that some public persons passing from the spot had made PCR call. He identified photographs of the alleged offending truck Ex.P-1 to Ex.P-8 (colly). He 3/10 stated that the accident ensued due to negligence on the part of accused. In his cross examination, he denied that he was not driving the motorcycle in a proper manner or at an over speed. He denied the accident was not caused by accused Abdul Kadir and rather his motorcycle fell on road due to mechanical fault.
PW-2 Irfan Khan is the son of complainant/PW-1. He is also cited as an eye witness to the occurrence being an injured in the case. He deposed that on 20.01.2016 at around 10:45 pm, when he was traveling on the motorcycle no. DL 2SN 2745 which his father was riding, then at near I.P. Estate, ITO, a truck dashed into the motorcycle from behind due to which he alongwith his father fell down. He stated that in the meantime someone had made PCR call after which police reached the spot and took him and his father to LNJP hospital. This witness was declared hostile and was encountered with the questions the nature of cross examination by Ld. APP for State. He admitted that the number of alleged offending truck was HR 38Q 3369 and the accident had taken place due to rash and negligent driving of the person driving the truck. He identified the photographs alleged offending truck Ex.P-1 to Ex.P-8 (colly). He failed to identify the accused as the person driving the alleged offending truck and stated that he had not seen the accused at the spot and is seeing him for first time in the Court.
PW-3 ASI Zamil Khan deposed that after receiving the PCR call regarding the alleged incident he alongwith other staff reached the spot of occurrence and found that one truck bearing number HR 38Q 3369 and motorcycle no. DL 2SN 2745 were lying there in accidental condition and two injured persons, namely, Imran Khan and Irfan were present there who were taken by him to hospital.
PW-4 HC Vinod Kumar deposed that on 21.06.2016 after receiving rukka from Ct. Ram Charan, case FIR No. 37/16 u/s 279/337 IPC was registered vide endorsement Ex.PW4/A. The copy of FIR is Ex.A-7 and certificate u/s 65B Indian Evidence Act is Ex.PW4/B. He stated that after receiving opinion regarding injury sustained by injured, section 338 was added in the case FIR.
PW-5 Ct. Krishan deposed that on 22.01.2016 the owner of alleged offending vehicle 4/10 Jasbir Singh produced the accused to the IO after which the accused was interrogated and arrested vide arrest memo Ex.PW5/A and personal search memo Ex.PW5/B was prepared.
PW-6 HC Subhash Chand deposed that after receiving DD No.29A regarding road accident, he alongwith Ct. Ram Charan reached the spot of occurrence where truck no. HR 38Q 3369 and motorcycle no. DL 2SN 2745 were lying in an accidental condition. He stated that injured persons were already taken to hospital by PCR after which he left Ct. Ram Charan at the spot and reached LNJP Hospital. He stated that after collecting MLCs of injured persons, statement of Imran was recorded and rukka Ex.PW6/A was prepared and handed over to Ct. Ram Charan for registration of FIR. The rukka alongwith copy of FIR was returned to him by Ct. Ram Charan after which the spot was inspected by him and site plan Ex.PW6/B was prepared. He deposed that the alleged offending truck and motorcycle were seized vide seizure memos Ex.PW6/C and Ex.PW6/D. He further deposed that notice u/s 133 M.V. Act Ex.A-6 was served on registered owner of the offending truck namely, Jasbir Singh after which reply Ex.PW6/E was received from him as per which, accused Abdul Kadir was driving the offending truck at the time of alleged accident. The accused was arrested vide arrest memo Ex.PW5/A and his personal search memo Ex.PW5/B was prepared. The documents i.e. DL of accused and RC and insurance of offending truck were seized vide memo Ex.PW6/F and both the vehicles were mechanically inspected. In his cross examination, he stated that public persons gathered at the spot of occurrence and were asked to join the proceedings but they declined to do so. PW-7 Ct. Ram Charan deposed that on 20.01.2016, he accompanied IO/HC Subhash to the spot of occurrence where the alleged offending truck and accidental motorcycle were lying and they were informed that the injured persons were taken to hospital after which IO left him at the spot and went to hospital. He deposed that IO came back to the spot after some time and handed over rukka to him on the basis of which the present FIR was registered and the copy of same alongwith rukka was returned to IO. He stated that IO had seized the vehicles vide seizure memos Ex.PW6/C and 5/10 Ex.PW6/D and after inspection of the spot, site plan Ex.PW6/B was prepared. In his cross-examination, he stated that IO had asked the public persons to join the proceedings but they refused to do so.
9. The accused admitted mechanical inspection report of motorcycle no. DL 2SN 2745, mechanical inspection report of truck HR 38Q 3369, MLCs of injured Imran and Irfan, the DD No. 29A dated 20.01.2016, notice u/s 133 M.V. Act, FIR No.37/16, reply dated 22.01.2016 given by registered owner Jasbir Singh and reply of accused dated 22.01.2016 vide his statement u/s 294 Cr.P.C. Same are Ex.A-1 to A-9, respectively.
10. 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".
16. Further, what would constitute rash and negligent act has been described by the Hon'ble Superme Court in the matter of Mohd. Aynuddin @ Miyan Vs. State of An- dra Pradesh decided 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 in-6/10
jury 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.
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 petitioner and as supported by authorities, that high speed in driving of a vehicle does not by itself amount to rash and negligent driving. If the accused driver was driving the vehicle on the high- way and had negotiated the distance safely, it could not have been said that he was driving rashly or negligently because 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 neg- ligent. 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 al- legation 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 regarded as rash or negligent."
Further in Abdul Subhan (Supra), the decision of State of Karnataka Vs. Satish 1998 SCC (CRI) 1508 was also discussed in which Hon'ble Supreme Court observed:-
7/10"3. Both the trial court and the appellate court held the respondent guilty for offences under Section 337, 338 and 304A IPC after recording a finding that the re- spondent 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 negligently 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.
4. Merely because the truck was being driven at a "high speed" does not be- speak 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 essential 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 "negli- gence" could be drawn by invoking the maxim "res ipsa loquitor".
11. 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 estab- lish the guilt of the accused.
12. In the present case, it is noteworthy to point out the fact that in order to estab- lish guilt of the accused, the prosecution is relying on the testimonies of PWs 1 and 2 who have been cited as only eye witnesses to the alleged occurrence. It is imperative to point out that both PWs 1 and 2 are the persons who have allegedly sustained the injuries due to he incident in question. PW-2 Irfan Khan has though stated that the ac- cident was caused due to rash and negligent driving of truck no. HR 38Q 3369 but he 8/10 failed to identify the accused as the person driving the alleged offending truck at the relevant time. Even detailed cross examination of this witness conducted by Ld. APP for State has not yielded any results for the prosecution and as such nothing incrimi- nating against the accused could be elicited from the testimony of this witness. PW-1 Imran Khan even though identified the accused as the person driving the alleged of- fending truck but as such nothing in the testimony this PW could establish that the truck was being driven by the accused in rash or negligent manner. PW-1 could not state about the manner in which the accused was driving the alleged offending truck so as to establish existence of rash and negligent act on his part. There is no evidence on record to establish rash and negligent driving of vehicle by the accused. Mere say- ing the fact that the vehicle was driven by the accused in rash and negligent manner does not establish the same rather the existence of rash and negligent act on the part of an accused has to be established through cogent and reliable evidences on record. In order to establish rash or negligent act, the mode and manner in which the vehicle was driven by the person accused of an offence, the approximate speed of the vehicle at the relevant time alongwith other relevant attending circumstances are required to be established by the prosecution. However, in the present case except the bald state- ment of PW-1 that the alleged offending truck was being driven by accused in rash or negligent manner, there is no other evidence on record so as to impute existence of culpable rash or negligent act on the part of accused. Further, from the testimonies of both the eye witnesses i.e. PW-1 and PW-2, it perceives that at the time of the alleged accident, some other public persons were also present at the spot and one of such public persons had informed the police but such public persons have not been cited as a witnesses in the present case. The explanation given by the IO for not associating public witnesses in investigation does not inspire confidence as in case of refusal of public of persons to join the investigation, the IO was having option to proceed against them in accordance with law but the IO has not adopted the said course for the reasons unexplained. These facts casts serious doubts on the story of prosecution and benefit of same deserves to be given to accused. The other witnesses examined 9/10 by the prosecution are either the formal witnesses or the official witnesses and as such their testimonies even if taken together are not sufficient in establishing the guilt of the accused. In nutshell, from the testimonies of the alleged eye witnesses exam- ined by the prosecution, the alleged occurrence of accident due to rash or negligent act of the accused stands not proved and as such the liability for the alleged offences cannot be fastened on the accused. In view of the foregoing discussion, this Court is of the considered view that the prosecution has failed to establish beyond all reason- able doubts that on the given date, time and place, the accused was driving the vehi- cle no. HR 38Q 3369 in a rash or negligent manner so as to endanger human life or public safety or others, therefore, accused deserves to be acquitted for offence u/s 279 IPC. The prosecution has also failed to establish beyond all reasonable doubts that on the given, date, time and place, the accused dashed his vehicle with the vehicle no. DL 2SN 2745 and caused simple injury to complainant Imran and grievous injuries to pillion rider Irfan Khan, therefore, the accused also deserves to be acquitted for of- fences u/s 337/338 IPC. The prosecution has also failed to establish the fact that after causing the alleged accident, the accused ran away from the spot and failed to dis- charge his statutory duty to help the injured persons, therefore, accused also deserves to be acquitted for offences u/s 134(a)/187 M.V. Act. The accused is accordingly ac- quitted for offences u/s 279/337/338 IPC and section 134(a)/187 M.V. Act.
13. The bail bonds, if any furnished by accused at the time of commencement of trail stands canceled. Surety, if any stands discharged. Documents, if any shall be re- turned to its rightful owner as per rules. Endorsement, if any stands canceled. Case property if any, shall be disposed off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be con- signed to record room after due compliance.
Announced in the open court
on 15th day of December, 2021 (RISHABH KAPOOR)
MM-03(Central),THC,Delhi
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