Delhi District Court
State vs . Nitin Kumar Fir No. 94/2009 on 27 July, 2021
State vs. Nitin Kumar FIR No. 94/2009
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-05, EAST DISTRICT, KKD COURTS, DELHI
State vs. Nitin Kumar
FIR No. 94/2009
U/sec. 279/337 IPC
PS: Krishna Nagar
Date of institution of the case: 08.10.2009
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 27.07.2021
Unique I. D. No. 3236/2016
JUDGMENT
a) Date of commission of the offence : 05.03.2009
b) Name of the complainant : Afroz
c) Name of the accused and his parentage : Nitin Kumar S/o Shri Raja Ram, R/o A-10/11, Kanti Nagar Extension, Delhi.
d) Offence complained of : Sec. 279/337 IPC
e) Offence charged of : Sec. 279/337 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 27.07.2021
State vs. Nitin Kumar FIR No. 94/2009
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case on 5 March 2009 at about 01:30 p.m., a DD entry No. 14 was recorded at PP East Old Seelam Pur regarding accident at KN 3, Kanti Nagar. The same was assigned to ASI Jai Pal for necessary action. Accordingly, he along with Constable Irfan went to the spot and found a motorcycle and a Maruti van in accidental condition. On enquiry, he came to know that injured had been shifted to Dr. Hedgewar hospital. Therefore, he went to the said hospital leaving behind HC Satender to guard the spot and collected the MLC of injured Afroz and Sibbul and recorded the statement of injured Afroz Ex.P7/A wherein he claimed to have sustained the injuries in road accident caused by accused. IO also learnt about admission of third injured in GTB hospital. Consequently, he went to GTB hospital and collected the MLC of injured Sher Khan. Thereafter, he again went to the spot. Meanwhile, injured Afroz and Sibbul also reached there. IO prepared the rukka on the statement of injured Afroz, on the basis whereof, present FIR was registered at police station Krishna Nagar against the accused Nitin Kumar and investigation was undertaken.
After completion of the investigation, charge-sheet under sections 279/337 IPC was filed against accused. Consequently, he was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to him as per norms.
Thereafter, charge under sections 279/337 IPC was framed against accused Nitin Kumar to which he pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined as many as nine witnesses.
State vs. Nitin Kumar FIR No. 94/2009 PW1/Raja Ram was the owner of offending vehicle.
PW2/ASI Veer Pal Singh was the Duty Officer, who had recorded the FIR/Ex.PW2/A. PW3/Mohd. Umar @ Sher Khan was one of the injured. He testified that one day, while he was travelling on his Bullet motorcycle, one Maruti Car hit his motorcycle as a result of which he sustained bodily injury. He stated that accused Nitin was driving the offending Maruti car in rash and negligent manner. He stated that Maruti car first hit a lady, thereafter a cyclist and his motorcycle.
He during cross-examination by the learned defence counsel stated that since there was heavy traffic on the road, he was travelling through service lane/road. He stated that he was shifted to GTB hospital in a car which had come at his workshop for denting painting. He stated that he know beat Constable. He stated that his statement was recorded in the hospital.
PW4/Constable Irfan had accompanied the IO during investigation.
PW5/Dr. Amit Gupta has proved the MLC of injured Afroz and Shibul.
PW6/Dr. Madhab Kalita has proved the MLC of injured Sher Khan.
PW7/SI Jail Pal Singh was the IO of the case.
PW8/SI Suresh Chand was the Mechanical Inspector. He proved the inspection report of both the vehicles vide Ex.PW8/A and Ex.PW8/B. PW9/Dr. Rajnand Kumar has proved the MLC Ex.PW8/A. State vs. Nitin Kumar FIR No. 94/2009 Injured/complainant Afroz and Sibbul could not be examined as prosecution witnesses and were dropped from the list of witnesses by the learned predecessor Judge vide order dated 05.10.2015 and 25.11.2019 respectively.
Thereafter, PE was closed and the statement of accused Nitin Kumar was recorded under section 313 of the Code to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implication. However, he did not examine any defence witness.
I have heard the arguments through V/C (CISCO WEBEX) and have also perused the file very carefully.
Arguments It was contended on behalf of the accused that there is no evidence to show that the accused was driving the offending vehicle in a rash and negligent manner. The only witness to this aspect is PW3/Sher Khan who has only made a bald statement that accused was driving the Maruti van in rash and negligent manner which finds no corroboration, direct or circumstantial. He also placed reliance on a judgment passed by the Hon'ble High Court in the case of State (NCT of Delhi) vs Hari Nandan Prasad decided on 4 May 2017 wherein it was observed as under:
"PW-4, in contrast, stated that the car was driven "rashly and negligently". Mere use of the expression "rash" or "negligent"
in relation to driving is at the most opinion of the person so stating. It has to be remembered that criminal jurisprudence depends not on opinion but on evidence. The witness should have been called upon to explain as to why, in his opinion, the manner of driving of the car by the respondent was rash or negligent."
State vs. Nitin Kumar FIR No. 94/2009 Per contra, it was argued on behalf of the State that there is sufficient evidence on record to convict the accused. He submitted that the fact that accused hit three persons one after another is sufficient to prove that he drove the Maruti van in rash and negligent manner. He submitted that evidence has to be weighed and not counted. He, therefore, prayed that accused may be convicted of the offence.
Decision and brief reasons for the same All persons are presumed to be innocent and no person can be convicted of an offence unless each element of the offence is proved beyond a reasonable doubt. The fact that a person has been arrested, sent behind the bars pending investigation or trial or charged for an offence gives rise to no inference of his guilt at trial. The law does not require an accused to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the accused, unless the court is satisfied beyond a reasonable doubt of accused's guilt on appreciation of prosecution evidence.
The accused is charged for the offence punishable under sections 279/337 IPC. Section 279 IPC deals with rash and negligent driving. It reads as under:
279. 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 term which may extend to six months, or with fine which may extend to one thousand rupees, or with both"
To constitute an offence under section 279 IPC, it must be proved that the person was driving the vehicle in a rash or negligent manner.
State vs. Nitin Kumar FIR No. 94/2009 Section 337 IPC provides punishment for causing hurt by rash or negligent act. It reads as under:-
337. Causing hurt by act endangering life or personal safety of others.--Whoever causes 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 six months, or with fine which may extend to five hundred rupees, or with both.
The charges arose out of a collision which occurred at Road No. 57, Kanti Nagar at about 01:15 p.m., between the offending vehicle i.e. Maruti car and Bullet Motorcycle.
The accused was allegedly driving the offending vehicle i.e., Maruti van while injured was riding the motorcycle. As per prosecution, two other persons had also sustained bodily injury in the accident, however, they could not be examined during trial. As per the report submitted by the office of the worthy DCP, they were not traceable. Thus, the entire prosecution rests on the testimony of injured/PW3/Sher Khan.
It is settled proposition of law that an accused can be convicted of any offence on the single evidence of any competent witness provided he is credible and reliable.
The Hon'ble Supreme Court of India in the case of Kunju @ Balachandran vs State of Tamil Nadu decided on 16th January, 2008 held as under:-
"....This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of section 134 of the Indian Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on State vs. Nitin Kumar FIR No. 94/2009 corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honored principle is that evidence has to be weighed and not counted. On this principle stands the edifice of section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
Now, let us see if the testimony proffered by the prosecution is credible and reliable?
PW3/Sher Khan testified that accused was driving the offending vehicle in rash and negligent manner. He stated that offending vehicle first hit a lady, then a cyclist and thereafter, collided with his motorcycle. He stated that accident had happened on service lane.
Perusal of the testimony of the injured/PW3/ Sher Khan shows that except making a bald statement that the driver of the Maruti van was driving it in a rash and negligent manner has not stated anything in regard to the manner in which the vehicle was being driven at the time of accident. I am of the view that his evidence was adduced in a most haphazard and unsatisfactory manner. No attempt was made to clarify as to what he meant by "rash and negligent manner".
According to this witness, the place of accident was service lane. To corroborate the version of injured, prosecution relied on the testimony of IO. Unfortunately, instead of corroborating the injured, he contradicted him regarding the place of accident. IO testified that place of accident was not service lane. Even otherwise, the case of the prosecution throughout has been that accident was caused at Road No. 57, Kanti Nagar.
PW3/injured also testified that in the accident, one lady pedestrian and a cyclist also sustained bodily injuries. However, the case of the prosecution throughout is State vs. Nitin Kumar FIR No. 94/2009 that two pedestrians namely Afroz and Sibbul had also sustained bodily injuries in the accident.
The contradictions in the evidence are glaring and no attempt was made by the prosecutor to clarify the contradictions.
On the issue of contradictions in the State's case, learned APP submitted that it was not uncommon for witnesses to differ in minor aspects and it does not necessarily mean that deliberate lies were told.
Since PW3 was a single witness to the alleged accident, his evidence needs to be viewed with caution. The prosecution must satisfy this court that despite the contradictions and discrepancies, the truth has been told.
In my view, the contradictions go to the heart of the case. PW3's failure to give consistent account of the incident impacts adversely on his credibility. No reasons for these contradictions were brought on record by the State. Hence, given the number and nature of contradictions in the evidence of sole eye witness, it would not be safe for this court to place implicit reliance on his evidence. he cannot be said to have been a credible witness.
Conclusion In view of the above discussion, I am of the considered view that there is no cogent evidence that the offending vehicle was being driven rashly and negligently except the bald statement of PW3 that vehicle was being driven in rash and negligent manner.
State vs. Nitin Kumar FIR No. 94/2009 The Hon'ble High Court of Delhi in the case of Vinod Kumar vs. State decided on 13 th October, 2011 while dealing with the similar type of evidence, has held as under:-
"7. 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 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. .."
Result Given the absence of evidence about how the accused drove the Maruti Van immediately prior to the collision/at the time of collision and the contradictions/inconsistencies in State's case, I am of the opinion that the State has failed to prove its case beyond reasonable doubt. Consequently, accused NITIN KUMAR stands acquitted of the crime charged.
Announced in open BABITA Digitally signed by BABITA PUNIYA Location: Court No.3, Court (through V/C) on 27th day of July, 2021 PUNIYA Karkardooma Courts, Delhi Date: 2021.07.27 14:21:59 +0530 (Babita Puniya) MM-05, East District, KKD Courts Delhi/27.07.2021
This judgment contains 9 pages and each page bears my signature.
(Babita Puniya)
MM-05, East District, KKD Courts
Delhi/27.07.2021
State vs. Nitin Kumar FIR No. 94/2009
State vs. Nitin Kumar
FIR No. 94/2009
U/sec. 279/337 IPC
PS: Krishna Nagar
27.07.2021
Court is convened through V/C (CISCO WEBEX).
Present: Learned APP for the State through V/C
Accused and his counsel through V/C
Final arguments heard. File perused.
Vide separate judgment of even date, accused NITIN KUMAR stands acquitted of the crime charged.
Bail bond under section 437-A of the Code be furnished within two working days. Thereafter, file be consigned to record room.
(Babita Puniya) MM-05, East District KKD Courts, Delhi/27.07.2021 File is taken up again at the request of the learned counsel.
Present: Accused in person along with counsel and surety Bail bond under section 437-A of the Code furnished. Perused and accepted File be consigned to record room after due compliance.
(Babita Puniya) MM-05, East District KKD Courts, Delhi/27.07.2021