Delhi District Court
State vs . Vimal Dev Monga on 26 October, 2012
1 Of 11
IN THE COURT OF SH. AMITABH RAWAT,
METROPOLITAN MAGISTRATE-08 (SE),
SAKET COURTS, NEW DELHI
State Vs. Vimal Dev Monga
FIR NO. : 265/2008
P.S. : Lajpat Nagar
U.S. : 279/338 IPC
Unique ID No.02403R0042202009
Date of institution of case : 16.02.2009
Date on which case reserved for judgment : 19.10.2012
Date of judgment : 26.10.2012
JUDGEMENT U/S 350 Cr.PC.:
1. Sl. No. of the case : 489/5/11
2. Date of institution of the case : 16.02.2009
3. Name of complainant : Dirender s/o Sh Puran Singh
r/o H.No.502, IInd Floor, Hari
Nagar, Ashram, New Delhi.
4. Date of commission of offence : 24.08.2008
5. Name of accused, parentage &
address : Vimal Dev Monga s/o late Sh
Manohar Singh, r/o H.No.88C,
Pocket A, Sukhdev Vihar,
New Delhi.
6. Offence complained of or proved : 279/338 IPC
7. Plea of accused : Accused pleaded not guilty
8. Final order : Acquitted
9. Date of which order was reserved : 19.10.2012
10.Date of pronouncement : 26.10.2012
BRIEF REASONS FOR THE DECISION OF THE CASE:-
FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga
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1. In brief the case against the accused as propounded by the prosecution is that on 24.08.2008 at about 05.30PM while driving his Honda City car bearing registration No.DL-1CL-0088 at Red Light Garhi More, Ring Road, Lajpat Nagar, within the jurisdiction of PS Lajpat Nagar in a rash and negligent manner he hit against the motorcycle bearing No.DL-3SX-9247 driven by Sh Mahabir Prasad and caused grevious injures to the pillion rider Sh Dirender Singh. The police machinery was put into action on the statement of the injured himself and present case FIR was registered against the accused and investigation was carried out. On completion of other formalities, present challan was filed in the court by the IO.
2. Copies of documents were supplied to the accused. Vide order dated 15.05.2009 learned predecessor of this Court framed a notice under Section 251 Cr.P.C. against accused for the offence punishable under Section 279/338 IPC against the accused to which he pleaded not guilty and claimed trial.
3. Out of eight witnesses cited in the list appended to the report under Section 173 Cr.P.C. prosecution has examined only six witnesses in support of its case. After conclusion of prosecution evidence, the statement of accused under Section 313 Cr.P.C. has been recorded on 12.04.2012 wherein he pleaded innocence, and opted to led evidence in his defence. In support of his case, accused himself examined under Section 315 Cr.P.C. as DW1 and another witness DW2 Sh Rakesh Kumar Khurana, a friend of accused himself.
4. I have heard arguments of Shj Mayank Tripathi, Learned APP for FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 3 Of 11 the State, and Sh S N Mehrotra, learned counsel for accused and have perused the record very carefully.
5. To prove its case prosecution examined its witness which are:-
PW1 Sh Dirender Singh, is the complainant and injured himself in this case. He testified that on the relevant time and date he was sitting as a pillion rider on the motorcycle of his friend PW2 Sh Mahabir Prasad. When they reached at the Red Light of Garhi, the offending vehicle driven by accused suddenly came from his right side at a fast speed and hit against their motorcycle. His statement Ex.PW1/A was recorded by the police and he identified the offending vehicle as Ex.P1. This witness also correctly identified the accused during his evidence. During the cross-examination this witness admitted that at the spot the attitude of the accused was compassionate and accused himself shifted him to the Vimhans Hospital. He also admitted that accused took place before they reached the traffic signal. According to this witness the car hit their bike from the right side on front wheel of the bike and it entangled with rear bumper of the offending vehicle from left side. He also admitted that there were around 05-10 vehicles on the road at that time.
6. PW2 Sh Mahabir Prasad Jaiswal is the person who was driving the motorcycle when the injured / complainant was sitting as a pillion rider. He deposed the speed of the offending vehicle to be 50 KMPH. In nutshell he has fully corroborated the testimony as deposited by PW1. He also testified the memo Ex.PW2/A vide which accused was arrested. During cross- examination this witness stated that he was driving his bike at a speed of 30-50KMPM. He further admitted that there was no vehicle in front of his FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 4 Of 11 bike. This witness also averred that the accident occurred after crossing the red light at a distance of 25-30 meters away from the Red Light Signal towards side of Mool Chand. Further, he admitted that when he stopped his bike at the Red Light, there were a few vehicles in front of his bike.
7. PW3 HC Satender Kumar deposed that on relevant date he was posted as Constable at PS Lajpat Nagar and on receipt of DD No.14, he accompanied the IO/HC Jagdish to Vimhans Hospital where the injured PW1 was admitted. After collection MLC of injured and recording the statement of PW1 , rukka was prepared and got the FIR registered at PS Lajpat Nagar through this witness. The accused was also present at the hospital beside PW2. After registration of FIR, this witness is stated to have returned at the spot where IO prepared the site plan at the instance of PW2. Rest he deposed about the manner in which the accused was arrested and seizure of the vehicles and documents etc. During cross-examination nothing has come on record.
8. PW4 HC Jagdish is the IO of this case. He has broadly deposed on the lines of prosecution case and the investigation carried out by him with PW3. He has also corroborated the testimonies of witnesses already discussed above and further stated that on completion of the investigation, charge-sheet was filed by him in the Court through the SHO concerned. During cross- examination nothing has also come on record, which needs to be mentioned.
9. PW5 Dr.K G Rajouria, RMO, Vimhans Hospital has testified on record that he identified the handwriting and signature of Dr.Hussain who was working as CMO at the relevant time and had prepared the MLC of injured FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 5 Of 11 No.105/2008 Ex.PW5/A.
10. PW6 ASI Krishan Kumar is the Duty Officer of PS Lajpat Nagar at the relevant time and he proved on record the copy of the FIR as Ex.PW6/A and his endorsement on the original rukka as Ex.PW6/B.
11. DW1 Sh Vimal Dev Monga is the accused himself who appeared in his defence and narrated on oath the manner of accident. He has exhibited a site plan as Ex.DW1/1 and copy of MACT award as Ex.DW1/2. He also deposed that he borne all medical expenses of injured/complainant. The other witness examined by accused as DW2 Sh Rakesh Kumar Khurana who deposed that after the accident, accused had called him and he reached at the Vimhans hospital. Rest of his deposition is 'hear-say' evidence.
12. The case of the prospection is that on 24.08.2008 accused was driving Honda City no.DL-1CL-0088 in a rash and negligent manner at about 05.30 PM at Red Light Garhi More, Ring Road, Lajpat Nagar and thereby hit against the motorcycle bearing No.DL-3SX-9247 of the injured Sh Dirender Singh causing grievous injuries to him.
13. Section 101 of Evidence Act states that "whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." In this regard in Dr. S.L. Goswami V/s State of Madhya Pradesh, 1972 Supreme Court Cases (Cri.) 258 it was held by FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 6 Of 11 the Hon'ble Supreme Court that "The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is pulpably false that burden does not become any the less." The Hon'ble Supreme Court of India in Sharad Birdhichand Sarda V. State of Maharashtra, reported in 1984 (4) SCC 116 held that "It is well settled that the prosecution must stand or fall on its own legs and it cannot drive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court."
Thus, the prosecution has to prove its case and stand on its leg.
14. The accused has been given notice for the offence punishable under Section 279 and 338 IPC. Coming to Section 338 IPC first, it runs as under :-
"338. Causing grievous hurt by act endangering life or personal safety of others.--Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."
FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 7 Of 11
15. The basic ingredients as extracted from reading of the sub-section are as follows :-
A. An accident by accused.
B. Injury of a person.
C. Causing of the injuries to a person by doing any rash
or negligent act of the accused.
16. Firstly, the prosecution version that an accident was caused between the offending vehicle and the motorcycle of the injured Hirender was established by PW1 Sh Dirender Singh as also PW2 Sh Mahabir Prasad. The same is also not denied by the accused and has been so admitted in Statement of Accused recorded under Section 313 Cr.P.C.
17. Secondly, as far as injuries to injured PW1 is concerned, it was also proved by PW1 and PW2 as also PW5 Dr. K G Rajouria, who proved the MLC bearing No.105/08 Ex.PW5/A.
18. Thirdly, the most important question to be decided in the present case is the aspect of rashness and negligence attributable to accused Vimal Dev Monga to the injured.
19. Coming to the testimonies, following are important factor:-
A) PW1 has deposed that on 24.08.2008 he was sitting on the back seat of the motorcycle of his friend Mahabir, who was driving the said vehicle.
FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 8 Of 11 B) They were proceeding towards AIIMS and when they reached at Ring Road at the Red Light of Garhi, the offending vehicle suddenly came from right hand side in a fast speed and hit against their motorcycle. As per PW1 the accident took place when the offending vehicle came from the back side and overtook the motorcycle.
C) As per PW2 Sh Mahabir Prasad the back side bumper of the offending vehicle entangled with front wheel of motorcycle as a result of which they fell down. He deposed that accused was driving the vehicle at a speed of 50 KMPH and his driving was very rough.
20. I have gone through the entire set of evidence and on their perusal I have no hesitation to hold that there are major contradictions in the case in hand and the evidence adduced by the prosecution does not prove the case against the accused beyond reasonable doubt.
21. Firstly, neither PW1 Dhirender Singh now PW2 Mahabir Prasad have deposed about the rash and negligent driving of the accused in causing the accident. The maximum PW1 went to in his deposition was to say that the accused suddenly came from the right hand side in a fast speed. As per PW2 the accused was driving at a speed of 50KMPH and his driving was very rough at that time. Important it is to mention here that the driving at a fast speed is not equivalent to saying that the accused was driving rashly or negligently. Further, the Hon'ble Supreme Court in the case of State of Karnataka v. Satish : (1998)8 SCC 493. Para 4 of the Crl. Revision No.922 of 1998 [4] judgment read as under:-
"4. Merely because the truck was being driven at a "high FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 9 Of 11 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 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". There is evidence to show that immediately before the truck turned turtle, there was big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."
22. Moreover, PW2 who was driving the vehicle could not have seen on his back whether the accused was driving rough or otherwise. Thus, the version of the PW2 is also doubtful in the manner of driving by the accused.
23. Furthermore, as per PW2 accused was driving his car at speed of 50KMPH and he himself was driving his motorcycle at a speed of 30-35 KMPM. Coupled with the fact that as per PW2 the accident happened after FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 10 Of 11 crossing the Red Light at a distance of 25-30 meters away from the red light. Thus, as per the prosecution witnesses, the accident was caused just after the light had turned green at the crossing. This also brings to focus the assertion of the accused that in any case the speed of the vehicle could not have been high considering that there were 05 -10 vehicles on the road at that time. The difference between the speed of two vehicles was also not much. Thus, rash or negligent driving by the accused is not proved.
24. There is also a material discrepancy in the deposition of PW1 and PW2 in as much as PW1 deposed that accident took place before they reached the traffic signal while PW2 deposed that accident was caused after they crossed the red light. There is yet another major discrepancy in the manner of accident of the prosecution version. Both PW1 and PW2 have deposed that the offending vehicle of the accused hit after he overtook their vehicle from the right hand side. However, as per PW3 HC Satender Kumar, offending car came from the left side and hit the motorcycle. Even the statement of the injured, PW1 on the basis of which FIR was registered also stated that the offending vehicle was trying to overtake the motorcycle from left side and caused the accident. It is important to mention here that as per PW2 Sh Mahabir Prasad the distance between his motorcycle and the wall beneath the flyover was only 6 feet and accused is stated to have hit the motorcycle having overtaken the said vehicle. This does not appear to be plausible as the offending vehicle could not have crossed and overtook the said vehicle that too at a fast speed from such a gap or distance.
25. Coming to the Section 279 IPC, it reads as under:-
FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga 11 Of 11 "Rash driving or riding on a public way - Whoever drives any vehicle, or rides, on any 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, shall be punished with imprisonment of either description for a time which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
26. Keeping the above discussion into view, as the offence punishable under Section 338 IPC has not been proved against accused, even the lighter offence punishable under Section 279 IPC is also not made out against the accused as rash or negligent driving by accused is also not proved.
27. In these circumstances, in view of the foregoing reasons, I am of the considered opinion that the prosecution has failed to prove its case against accused Vimal Dev Monga beyond reasonable doubt. Accused is, therefore, acquitted of the offences punishable under Section 279/338 IPC.
File be consigned to Record Room.
Announced in the Open (AMITABH RAWAT)
Court today on 26.10.2012 Metropolitan Magistrate-08 (SE)
Saket Courts, New Delhi
FIR No.265/2008 PS Lajpat Nagar State Vs. Vimal Dev Monga