Delhi District Court
State vs . Furkan Khan on 21 March, 2022
IN THE COURT OF MS. VIDHI GUPTA ANAND
MM-08 (CENTRAL), TIS HAZARI COURTS COMPLEX, DELHI.
State Vs. Furkan Khan
FIR No. 128/2012
PS : Kotwali
U/s 279/337/338 IPC& 3/181 MV Act
Date of Institution : 18.12.2012
Date of reserving of order : 08.02.2022
Date of Judgment : 21.03.2022
JUDGMENT
1. Serial No. of the case : 295889/2016
2. Name of the Complainant : Aatif
3. Date of incident : 27.04.2012
4. Name of Accused person : Furkan Khan
S/o Sh. Hakdadad Khan
R/o H. No. 620, Gali No. 23, 26
Jafrabad, Delhi.
5. Offences for which charge : Under Section 279/337/338 IPC
has been framed & 3/181 MV Act
6. Plea of Accused : Not guilty
7. Final Order : Convicted
BRIEF REASONS FOR THE DECISION:
FIR No. 128/12 State Vs Furkan Khan Page 1 of 21
PS: Kotwali
Factual Matrix and Trial Proceedings
1. Furkan Khan, the Accused herein, has been charged for committing offences punishable under Section 279/337/338, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC") and Section 3/181 Motor Vehicles Act.
2. The case of the prosecution is that on 27.04.2012 at about 06:05 pm at the crossing of Shantivan, Outer ring road, within the jurisdiction of Police Station Kotwali, Accused was found driving a TSR bearing No. DL 1RJ 4224 in a rash and negligent manner, so as to endanger human life and personal safety of others and the said TSR overturned when he suddenly took a turn towards ring road. This led to simple injuries on the person of Aysha, Mohd. Nayab and Nazima and grievous injuries on the person of one Aatif.
3. On the basis of the complaint given by Aatif, present FIR was registered on 29.05.2012. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the Accused was charge-sheeted for the offences punishable under Section 279/337/338, IPC and 3/181 MV Act.
4. After perusing the record, cognizance was taken of the alleged offences and summons were issued to the Accused on 18.12.2012. Upon appearance of Accused in the Court, in compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.) copies of chargesheet and annexed documents were provided to the Accused.
5. Thereafter, on 29.05.2013, charge for the offences punishable under Section 279/337/338 IPC was framed against the Accused. It was FIR No. 128/12 State Vs Furkan Khan Page 2 of 21 PS: Kotwali read over to him to which he pleaded not guilty and claimed trial. Accused stated in his plea of defence that he was not negligent in driving the TSR and the accident happened as the front wheel of the TSR was wobbling. Accordingly, the matter was put up for recording Prosecution Evidence.
At this stage, it is pertinent to note that on 23.06.2012, Kalandara proceedings u/s 5/180 and 146/196 Motor Vehicles Act (MV Act) were initiated against one Yusuf who was the owner of the offending TSR in the present matter. The said Kalandara proceedings were also filed along with the chargesheet. Accused Yusuf was summoned in the court and vide order dated 29.05.2013, he was convicted for the aforesaid offences of the MV Act upon his plea of guilt. Accused Yusuf was sentenced to pay fine of Rs.2000/- which was paid by him on the same day itself and accordingly, the Kalandara proceedings were disposed off. Later, Yusuf appeared in the proceedings as PW1.
Further, it is also pertinent to note that vide order dated 03.08.2018, Amended Charge was served upon the Accused u/s 3/181 MV Act for driving the offending vehicle without having a valid license. To this offence also, Accused pleaded not guilty and claimed trial.
6. Meanwhile, in order to bring home the guilt of the Accused Furkan, prosecution has examined 13 witnesses. Relevant portions of the testimonies of Prosecution witnesses is given in the following paragraphs for perusal.
6.1. PW-1 Mohd. Yusuf is the superdar of the offending vehicle in the present case i.e. vehicle bearing registration number DL1 RJ 4224 make FIR No. 128/12 State Vs Furkan Khan Page 3 of 21 PS: Kotwali TSR. He has deposed that he had bought the said TSR from one Sudhakar in August 2008 and on 27.04.2012, he had handed over the same to Accused Furkan Khan on rent to drive the same. He added that on the date of the accident, Accused Furkan had called him on his mobile and told him that the said vehicle had met with an accident near Shantivan Chowk. PW1 also stated that he received a notice under Section 133 of MV Act and he had given reply to the same. The said notice is Ex. PW- 1/A. The TSR was brought by PW1 in the court and during his testimony the same was exhibited as Ex. P-1.
During his cross-examination, he denied the suggestion of Ld. Counsel for the Accused that on 27.04.2012, he had given the TSR to some other person. Nothing was suggested to the witness by defence in regard to the fact as to who was actually driving the TSR on 27.04.2012, if not Furkan.
6.2. PW-2 Sh. Aatif is the complainant in the present case and the most important witness as he is not only the eye-witness to the matter but also the victim who suffered grevious injuries. He has deposed that on 27.04.2012 at about 6 pm., he was sitting in an Auto at Darya Gang, Loha Pul alongwith other passengers. He could not clearly recollect registration number of the said TSR. He further stated that at the rear side of the seat 2/3 passengers were sitting, 2 were ladies and one man and at the front side two passengers were sitting including him whereby he was sitting at the right side of the driver. He specifically deposed that the driver / Accused was driving the said TSR in a high speed . He also said that he had told the Accused to drive TSR slowly but he did not care towards his advice and continued driving the said TSR in high speed . He added that FIR No. 128/12 State Vs Furkan Khan Page 4 of 21 PS: Kotwali when the said TSR reached near the Shantivan Chowk, Red Light, the driver / Accused suddenly turned the said TSR due to which the said TSR turned turtle whereupon he came under the said TSR was dragged to some distance. Further, he deposed that some public persons gathered at the spot and pulled him from under the TSR and saved his life. He also stated that other passengers also sustained injuries. Further, he stated that after sometime an ambulance reached at the spot and he was shifted to LNJP hospital where he was given treatment and was discharged on 26.05.2012. He exhibited his statement given to the IO as Ex PW-2/A. He correctly identified the Accused in the court.
During his cross-examination, he denied the suggestion of Ld. Counsel for the Accused that at the time of the accident it was not Furkan but owner of the TSR who was driving the same.
6.3. PW-3 Ms. Ayesha has deposed that on 27.04.2012, he took a TSR/ autorickshaw from Jama Masjid to Seelampur in which three persons excluding the driver were already sitting out of which two persons (One lady and one man) were sitting behind and one person was sitting alongwith driver. He further deposed that the driver / Accused was driving the said TSR in high speed and also that he asked to the driver to drive the TSR slowly but driver did not follow his instructions and continued to drive fast speed. He also stated that when the said TSR reached near Shantivan Red Light, the Accused suddenly turned the said TSR due to which the man besides the driver got serious injuries. He added that he also sustained injuries in his head, while the other passengers also sustained injuries. Also, he deposed that in the meantime, a government ambulance reached at the spot and shifted the injured FIR No. 128/12 State Vs Furkan Khan Page 5 of 21 PS: Kotwali persons to Lok Nayak Hospital where they were medically examined. He stated that the TSR number was DL4224 but he could the exact number. He stated that he did not initiate criminal proceedings against the Accused as he sustained minor injuries. He correctly identified the Accused in the court.
6.4. PW-4 Mohd. Nayab has deposed that on 27.04.2013 at about 5-6 pm, he took a TSR / Autorickshaw from Paharganj to Seelampur wherein besides him, his cousin namely Ayesha and one old lady were sitting in the rear seat of the said TSR. He also stated that in the front, near the driver side of TSR, one passenger was sitting in the left and another in right side. Fortifying the prosecution case further, he stated that the driver of the said TSR was driving the TSR in high speed. He added that after sometime the said TSR turned turtle due to high speed whereupon the passengers sustained injuries. He stated that one passenger who was sitting besides the diver suffered serious injuries. He specifically stated that the said TSR turned turtle due to negligence of the driver because he was driving the TSR in high speed. He added that he asked to the driver / Accused to drive the said TSR slowly but he did not pay attention to his advice. He could not recollect the exact date of the accident or the registration number of the TSR.
6.5. PW-5 Tesnim Uddin Sidiqui, the Mechanical Inspector of the TSR, has deposed that on 26.06.2012, on the request of HC Raj Kumar, PS Kotwali, he inspected one Bajaj TSR No. DL1RJ4224 and submitted his detailed report Ex. PW-5/A. Upon the perusal of the mechanical inspection report, several damages can be seen upon the TSR viz., front mud-guard dented, Head light missing, left side front show FIR No. 128/12 State Vs Furkan Khan Page 6 of 21 PS: Kotwali dented/pressed, rear left back light damaged and rear left back light missing. Nothing has been put to the witness during his cross- examination as to how were these damages caused to the TSR.
6.6. PW-6 HC Ramotar was the duty officer of the concerned PS at the time of the present case and deposed that on 29.05.2012, at about 07:10 p.m., on the basis of Rukka handed over to him by IO / HC Raj Kumar he registered FIR of this case; copy of which is Ex. PW-6/A. He also exhibited the endorsement made on rukka as Ex. PW-6/B. 6.7. PW-7 Ct. Masoom deposed that on 27.04.2012, he was working as DD writer whereby at about 06:10 p.m. he recorded DD No. 52B; copy of which is Ex. PW-7/A. The said DD entry mentions information received with respect to over-turning of a TSR at Shantivan Red Light.
6.8. PW-8 Dr. Ravinder Kumar, CMO, Lok Nayak Hospital, Delhi is a crucial MLC witness examined by the Prosecution. He has deposed that on 27.04.2012, at about 06:25 p.m, HC Raj Kumar had brought four patients namely Aysha, Mohd. Nayab, Nazima & Aatif at the hospital. He further stated that patient Aatif & Nazima were examined by Dr. Vinod, patient Nayab was examined by Dr. Vikash and Patient Aysha was examined by Dr. Prayash. He added that all the doctors prepared detailed MLCs of the injured persons. He could identify the handwritings and signatures of the aforesaid doctors. MLC of Aatif is Ex. PW-8/A, MLC of Nazima is Ex. PW-8/B, MLC of Mohd. Nayab is Ex. PW-8/C and MLC of patient Aysha is marked X-1. Nil cross-examination was recorded for this witness.
FIR No. 128/12 State Vs Furkan Khan Page 7 of 21PS: Kotwali As per MLC Ex.PW8/A, the injuries suffered by Aatif are grevious in nature while the remaining MLCs mention simple injuries.
6.9. PW-9 HC Raj Kumar is the IO in the present case. He has deposed that on 27.04.2012, at about 6:10 p.m, one accident call was received at the PS, which was recorded vide DD No. 52B stating that one TSR had turned turtle at Shanti Van Chowk. He added that when he reached at the spot after receiving the information, he did not find any TSR or injured on the spot and accordingly, he returned to the PS and filed the call as untraced.
He has also deposed that on 29.05.2012, one person named Ayaz Mirza had come in the police station and told him that he was brother in law of injured Aatif and that Aatif was admitted in the hospital and there were other injured persons as well in the matter. Further, PW9 added that he alongwith Ayaz Mirza reached at LNJP Hospital where he met Aatif and received his MLC and MLCs of three other injured persons. He added that he recorded statement of Aatif and prepared the site plan at his instance (Ex.PW9/D) and in the meanwhile, FIR was got registered in the matter. He added that Complainant had told him that the number of TSR was DL-1RJ-4224. Accordingly, he had given a notice under Section 133 MV Act to the owner of the said TSR and on 23.06.2015, owner Yusuf came at the police station alongwith the TSR and the driver of the offending vehicle i.e. Accused Furkan. He added that Yusuf produced the documents of the TSR i.e., permit and fitness certificate. He specifically stated that Yusuf had stated in his reply to notice u/s 133 MV Act that he had given the said TSR to Accused Furkan Khan for driving. Accordingly, after conducting inquiries from Accused Furkan, IO arrested him and FIR No. 128/12 State Vs Furkan Khan Page 8 of 21 PS: Kotwali personally searched him (vide memos Ex.PW10/A and Ex. PW10/B) and thereafter, released him on police bail (vide memo Ex.PW9/A). He seized the TSR vide seizure memo Ex.PW9/B and also seized the documents of the TSR vide memo Ex.PW10/C. He exhibited the Kalandara prepared against Yusuf u/s 5/180 and 146/196 MV Act as Ex.PW9/C. He deposed with respect to the conducting of mechanical inspection of the TSR. Further, he deposed that he moved an application before the Ld. MM for getting TIP proceedings of the Accused conducted, however, Accused refused to join the same stating that victim has already seen him at the time of the Accident. TIP proceedings are Mark A. He also deposed with respect to receiving the MLC results and added section 338 IPC as in the MLC of Accused Aatif mentioned grevious injuries. Lastly, he deposed with respect to conclusion of investigation and filing of challan. He correctly identified the Accused in the court.
6.10. PW-10 ASI Joginder is an investigation witness who joined the IO during the arrest and personal search of the Accused as well as witnessed the seizure of documents of the TSR. The relevant documents attested by him are already Ex.PW10/A to Ex.PW10/C. 6.11. PW11 Sudhakar and PW12 Manmohan Singh are not material witnesses to the case and deposed with regard to the ownership of the TSR by one Yusuf, a fact which has already come on record during testimonies of previous witnesses.
6.12. PW13 Dr. Ashwani Singh is yet another material witness in this case as he examined Complainant Aatif. He deposed that on the MLC of injured Aatif (Ex.PW8/A), after going through X-Ray reports, he had FIR No. 128/12 State Vs Furkan Khan Page 9 of 21 PS: Kotwali deposed that nature of injury was grevious due to pelvic fracture. Nil cross-examination was recorded for this witness.
7. After due examination and cross examination of all the witnesses, the prosecution evidence was closed. Accused was examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. whereby substance of incriminating evidence was put to him. Accused denied all the incriminating evidence against him and pleaded his innocence, Further, he stated that the Accident happened due to the mistake of another TSR driver.
8. When questioned as to whether he wanted to lead any evidence in his defence, the Accused answered in negative. Therefore, matter was fixed for final arguments.
9. Final arguments have been duly addressed by Ld. APP for the State as well as Ld. LAC for the Accused.
9.1. Ld. APP for the State argued that the prosecution has proved its case beyond reasonable doubts as it has proved all the ingredients of the offences punishable under Section 279/337/338 IPC. Further, it was argued on behalf of the State that there are as many as four public witnesses who have given consistent testimonies and thus, it is apparent that the accident was indeed caused due to the rash and negligent conduct of the Accused. Hence, Ld. APP for the State strongly pressed upon conviction of the Accused.
9.2. Ld. LAC on behalf of the Accused, on the other hand, argued that the prosecution has failed to prove its case against the Accused beyond reasonable doubts. It was further argued that there is a delay in FIR No. 128/12 State Vs Furkan Khan Page 10 of 21 PS: Kotwali registration of FIR of about one month which remains unexplained and therefore, false implication of the Accused cannot be ruled out. Arguing that Accused is innocent and has been made a victim of circumstances, Ld. LAC for the Accused prayed that the benefit of doubts may be given to the Accused and he may be acquitted.
10. This court has heard the rival submissions of the parties and carefully perused the material available on record.
As per settled principles of criminal law, Accused is presumed to be innocent until proven guilty. The prosecution case has to stand firm on its own legs to point out the guilt of the Accused by bringing cogent and reliable evidence. On the other hand, Accused can create doubts in the Prosecution case by cross-examining the prosecution witnesses to create doubts on their credibility.
Further, the burden upon the Accused is to rebut the prosecution case by creating preponderance of probabilities in his favour. However, once the prosecution case stands proved, mere denial on the part of the Accused is not sufficient to prove his innocence and he has to substantiate his defence by supporting it with reliable evidence.
In the case at hand, Accused has not brought any defence evidence and hence, only on the basis of prosecution evidence will the guilt or innocence of the Accused be decided. Accordingly, the relevant provisions of law attracted herein, the relevant authorities elucidating the law as well appreciation of evidence has been discussed in the following pages.
FIR No. 128/12 State Vs Furkan Khan Page 11 of 21PS: Kotwali Appreciation of evidence in the light of Legal Provisions
11. In the present case, the Accused has been charged for the offences punishable under Sections 279/337/338 IPC and 3/181 MV Act 11.1. Section 279, IPC prescribes punishment for rash or negligent driving or riding on a public way. It provides as follows:
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.
A bare perusal of the provision brings forth that the pre-requisite for completion of this offence is the commission of a rash or negligent act by the Accused so as to endanger human life or cause injury in a public way. The the Hon'ble Delhi High Court in the case of Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562 has discussed the ingredients which need to be established by the prosecution for convicting an Accused u/s 279 IPC. The Hon'ble Court has interalia held that:
"As 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.
11.2. Section 337, IPC is titled as Causing hurt by act endangering life or personal safety of others. It provides that:
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.FIR No. 128/12 State Vs Furkan Khan Page 12 of 21
PS: Kotwali In view of the provision read above, in order to constitute this offence causing of hurt because of the rash and negligent act is imperative for completion of offence.
11.3. Section 338, IPC is titled as Causing grevious hurt by act endangering life or personal safety of others. It provides that:
Whoever causes grevious 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.
On the lines of section 337 IPC, in order to constitute this offence causing of grevious hurt because of the rash and negligent act is imperative for completion of offence.
11.4 A cumulative reading of the provisions given above, mandates that in order to prove the offences punishable U/s 279/337/338 IPC, the prosecution has to prove beyond all reasonable doubts, the following mandatory ingredients; viz, • The rash or negligent act / driving in a public way which is likely to endanger human life or cause hurt or injury to any other person; and • The said rash or negligent act / driving of the Accused was the proximate cause of injury caused to the victim.
12. As to what is a rash/negligent act in the parlance of criminal jurisprudence has been elucidated in several judgements of Hon'ble Apex Court of India.FIR No. 128/12 State Vs Furkan Khan Page 13 of 21
PS: Kotwali
12.1. In the matter titled as Rathnashalvan v. State of Karnataka AIR 2007 SC 1064, the Hon'ble Supreme Court of India observed that :
"7. ...Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the Accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.(underlining added)'
8. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the Accused person to have adopted.
12.2. Also, the Hon'ble Apex Court in the Judgment titled as Mohd. Aynuddin Miyam vs. State of A.P. [(2000)7 SCC 72] held that:
"9. A rash act is primarily an overhasty 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 FIR No. 128/12 State Vs Furkan Khan Page 14 of 21 PS: Kotwali risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure 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 precaution."
13. Coming now to the facts of the case at hand, the culpability of the Accused shall be decided on the basis of the parameters mentioned above. The court will have to find answers to certain questions which bring forth the truth of the matter i.e. whether the Accused was driving the offending vehicle at the time of the commission of alleged offences, whether the Accused was rash and negligent in his conduct and whether due to the rash and negligent conduct of the Accused injuries were caused to other persons. Each of the said issues are discussed in the following paragraphs.
13.1. Whether the Accused was driving the offending TSR at the time of the alleged incident?
The answer to this question can be conveniently found in the very answer given by the Accused in his plea of defence taken at the time of the serving of charge. Accused has admitted the accident and stated that the same was caused due to wobbling of front wheel of the TSR. Even in his statement u/s 313 Cr.P.C. Accused has not denied driving of the offending vehicle and only stated that the accident was caused due to mistake of another TSR driver. This again implies that the factum of accident as such has not been denied by the Accused.
FIR No. 128/12 State Vs Furkan Khan Page 15 of 21PS: Kotwali It is observed that during the cross-examination of certain prosecution witnesses, it has been suggested by Ld. Counsel for the Accused that some other person i.e. the owner of the TSR was driving the same at the time of the Accident, however, no evidence has been brought by the Accused to prove this claim. No alibi has been brought by the Accused to prove that he was not present at the spot of the incident. Accused has not shown any motive of his false implication in this matter. On the contrary, PW1 i.e. the owner of the offending TSR has stated in his testimony that on the day of the alleged incident he had given the TSR for driving to Accused Furkan Khan. There is nothing on record to discredit the testimony of PW1. Hence, it stands established that Accused Furkhan was in possession of the offending vehicle on the day of the accident.
Moreover, it is pertinent to note that the Prosecution witnesses have correctly identified the Accused in the court and hence, identity of the Accused as the person who committed the Accident has been duly established.
Another factor which comes in favour of the Prosecution case is that Accused has refused to participate in TIP proceedings stating that victim has already seen him at the time of the Accident. This itself becomes an admission on the part of the Accused that the Accident has been caused by him.
The mechanical inspection report of the offending TSR mentions several damages to it including damaged head light and rear lights and other dents. No explanation has been given by the Accused as to how were these damages caused to the concerned TSR. Hence, it again implies FIR No. 128/12 State Vs Furkan Khan Page 16 of 21 PS: Kotwali that it was the same TSR which caused the accident. TSR has been duly Exhibited on record during testimony of PW1 and the identity of the TSR has not been disputed anywhere during the entire trial.
In view of the above discussion, the answer to the question as to whether the Accused was driving the offending vehicle at the time of the accident is yes.
13.2. Whether the Accused was rash and negligent in his conduct?
The first and foremost aspect with respect to the rash and negligent conduct of the Accused pertains to the fact that he was driving the vehicle without any license. The owner of the offending TSR has pleaded guilty for the offence u/s 5/180 MV Act which provides punishment for the owner on allowing unauthorized persons to drive vehicles. Also, the Accused has not brought any document to prove that he was having a valid license on the day of the accident. It is already mentioned above that the Accused has not brought any evidence in his defence and hence, it stands established that Accused was driving the vehicle despite being not authorized. The moment Accused started driving on the public way without any license, his conduct became rash and negligent.
Moreover, the four public witnesses examined in the court i.e. the passengers who were present in the TSR at the time of the accident have uniformly stated that the driver of the TSR i.e. the Accused was driving the same at a high speed and they advised him to slow down but he did not pay any heed to their request. It is a settled proposition of law that merely because the vehicle was being driven at a high speed, the driver does not become rash and negligent but at the same time when the driver FIR No. 128/12 State Vs Furkan Khan Page 17 of 21 PS: Kotwali refuses to slow down at the request of fellow passengers despite anticipated danger, he becomes rash and negligent. The fact that the TSR turned turtle while taking a turn on the road speaks for itself about the high speed in which it was being driven and lack of control of the driver on the vehicle.
Once the testimonies of the Prosecution witnesses has come on record that the driver was driving in rash and negligent manner, the onus shifted on the Accused to prove that he took due care and caution to ensure safety of the passengers despite high speed. However, the Accused herein has failed to create any probabilities in his favour. He has neither brought any evidence on record nor rebutted the testimonies of eye witnesses during their cross-examination. In his plea of defence, Accused has stated that the accident happened as front wheel of the TSR was wobbling, however, no evidence has been brought to support this claim.
Undoubtedly, the answer to the question as to whether the Accused was driving in a rash and negligent manner on a public way is also in affirmative.
13.3. Whether due to the rash and negligent conduct of the Accused injuries were caused to other persons?
This is the last aspect to be discussed to establish the culpability of the Accused u/s 337 and 338 of the IPC. For determining the answer to this question, two most important witnesses are PW8 Dr. Ravinder Kumar and PW13 Dr. Ashwini Singh. It is pertinent to note that nil cross- examination has been recorded for both the said witnesses. They have exhibited the MLCs of the injured persons on record, most important FIR No. 128/12 State Vs Furkan Khan Page 18 of 21 PS: Kotwali being Ex.PW8/A i.e. the MLC of Complainant Aatif. In all the MLCs it is specifically stated that injuries have been caused due to road traffic accident at Shanti Van red light at around 06.05 p.m. In the MLC of Complainant Aatif, the final opinion has been given as grevious injury after perusal of X-Ray reports which show pelvic fracture. In the definition of Grevious hurt given in section 320 IPC, fracture has been specifically included. Hence, the requirement of section 338 i.e. causing of grevious hurt due to rash and negligent act stands proved.
In the MLC of injured Nayab and Nazima, final opinion has been given as simple injury. Hence, the requirement of section 337 i.e. causing of hurt due to rash and negligent act stands proved.
Further, the injured persons have testified that person sitting in the front i.e. Aatif had suffered serious injuries. They have also commonly stated that they were taken to LNJP hospital for treatment. Hence, a cumulative reading of the MLCs with the testimonies of the public witnesses establishes that the injuries, simple as well as grevious, were suffered by public persons on account of the accident caused by the Accused.
Hence, even the answer to the third question as to whether due to the rash and negligent conduct of the Accused injuries were caused to other persons also comes out as yes.
14. Before parting it is pertinent to deal with the issue of delayed registration for FIR. Admittedly, the accident happened on 27.04.2012 but the FIR has been registered on 29.05.2012 i.e. after a gap of more than a FIR No. 128/12 State Vs Furkan Khan Page 19 of 21 PS: Kotwali month. The explanation to this discrepancy can be found in the testimony of the IO/HC Raj Kumar Singh who has deposed as PW9. He has deposed that 27.04.2012, an accident was reported to the PS at around 06.10 PM vide DD no.52B at Shanti Van chowk but by the time he reached at the spot, neither the injured nor any vehicle was found at the spot. This clearly shows that the information of the accident was given to the police at first instance itself and as such it was the police authorities who filed the complaint as untraced. Clearly, there is no delay in giving of information to the police.
Further, it is also to be noted that Complainant Aatif was admitted in this hospital from 27.04.2012 till 29.05.2012 and as soon as he got discharged, he reported the offence to the police again. Hence, no delay whatsoever can be attributed on the part of the Complainant as far as reporting the matter to the police is concerned.
Conclusion
15. In view of the discussion held above, there remains no scope of doubt that Accused Furkan Khan was driving the offending TSR without valid license in a rash and negligent manner so much so that the vehicle over-turned resulting in simple injuries to Nayab and Nazima and grevious injuries to one Aatif. The Prosecution witnesses have supported the case of Prosecution with their consistent testimonies and identification of the Accused. The Accused on the other hand has been unable to create any loop-hole in the Prosecution case to establish even preponderance of probabilities in his favour and rather by constantly changing his defence, Accused has weakened his defence at each stage of FIR No. 128/12 State Vs Furkan Khan Page 20 of 21 PS: Kotwali trial. Hence, this court has reached the conclusion that culpability of the Accused stands proved beyond all reasonable doubts.
16. Accordingly, Accused Furkan Khan is held guilty for the offences u/s 279/337/338 IPC and u/s 3/181 MV Act and hence, convicted for the same. Accused shall be heard separately on point of sentence.
Announced in the open court on 21.03.2022 (VIDHI GUPTA ANAND) Metropolitan Magistrate-08 (Central) Tis Hazari Courts, Delhi.
This judgment contains 21 signed pages.
This judgment has been directly types to dictation.
FIR No. 128/12 State Vs Furkan Khan Page 21 of 21PS: Kotwali