Delhi District Court
3.Title State vs . Mohd. Iqbal Parvej on 5 December, 2012
THE COURT OF SH. SUNIL KUMAR SHARMA :
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 348/00
2.Unique Case ID No. 02401R0085362001
3.Title State Vs. Mohd. Iqbal Parvej
3(A).Name of complainant Sh. Harish Chand s/o Sh. Sampat Rai r/o
WZ12B, Ramgarh Colony, Basai Dara
Pur, New Delhi.
3(B).Name of accused Mohd. Iqbal Parvej, s/o Inamul Haq, r/o
R37, Gurupreet Nagar, Uttam Nagar,
Delhi.
4.Date of institution of challan 23.01.2001
5.Date of Reserving judgment Pronounced on the same day
6.Date of pronouncement 05.12.2012
7.Date of commission of offence 03.07.2000
8.Offence complained of Under Section 279/337 IPC
9.Offence charged with Under Section 279/337 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Accused is Convicted for the offence
punishable u/s 279/337 IPC
12. Date of receiving of judicial file in 01.02.2011
this court
FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 1 of 28
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The matrix of the case of the prosecution in a narrow compass is that on 03.07.2000 at about 05.00 PM at Najafgarh Road near Natraj Cinema within the jurisdiction of PS Moti Nagar the accused was found driving the vehicle bearing registration no. DL4SY2252 in a rash and negligent manner so as to endanger human life and personal safety of the others and while driving the aforesaid vehicle in the aforesaid manner caused simple injuries on the person of complainant Harish and thereby committed an offence punishable u/s 279/337 IPC.
2. Accordingly, charge sheet was filed u/sec 173 CrPC, copies were supplied to the accused in compliance of section 207 cr.p.c and on the basis of the material on record, notice for the offence punishable u/s 279/337 IPC was framed against the accused on 15.01.2003, to which the accused pleaded not guilty and claimed trial.
3. Prosecution in order to substantiate, prove its case and to nail the guilt of the accused has examined as many as six witnesses namely :
1. PW1 ASI Devender Kumar, Mechanical Inspector.
2. PW2 Harish Chand, Complainant.
3. PW3 Insp. B.P. Singh, Investigating Officer.
4. PW4 HC Suresh Kumar, Duty Officer.
5. PW5 Ct. Sanjay Kumar, Investigating Officer.
FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 2 of 28
6. PW6 Dr. Ajay Sharma, Medical Officer.
PW1 ASI Devender Kumar is the mechanical inspector and has proved the mechanical inspection report of the vehicle as Ex. PW1/A deposing that the mechanical inspection of vehicle bearing no. DL4S42252 was conducted by him on 04.07.2000 at the request of SI Braham Pal Singh. The right side body and beading of the vehicle was dented and had the scratch marks. Other system was OK.
The witness was not cross examined.
PW2 Sh. Harish Chand, the complainant and has deposed that on 03.07.2000 at 04.00 PM while he was crossing the road near Natraj Cinema for going towards Kirti Nagar one two wheeler scooter came from the side of Raja Garden. The scooter was being driven at a fast speed by accused Mohd. Iqbal Parvej and three persons were riding on the same. The same hit him and its impact made him to jump. He received the injuries and crushes on both the toes. Two of his tooths were also broken. His neighbour Nem Chand Jain, who was at that time with him and his father who reached at the spot after accident shifted him to Kalra Hospital and thereafter to DDU hospital. Accused was apprehended by his neighbour. Police met him in DDU hospital and recorded his statement Ex. PW2/A. He received the treatment and was forced to remained at his house for about 1.5 months due to the accident.
FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 3 of 28 The witness had also deposed regarding the number of the offending scooter as DL4SY2252 being driven by the accused at the time of the accident. The witness was cross examined at length by the Ld. Defence Counsel.
PW3 Insp. B.P. Singh, Investigating Officer has deposed that on 03.07.2000 on receipt of DD no. 15A Ex. PW3/A regarding accident, he along with Ct. Sanjay Kumar went near Natraj Cinema and found scooter bearing no. DL4SY2252 in an accidental condition. The information regarding the shifting of the injured to the DDU hospital was received vide DD no. 16A which is Ex. PW3/B. He went to the DDU hospital and recorded the statement of Harish Chand, the complainant, Ex. PW2/A and made the endorsement on the same as Ex. PW3/C and handed over the rukka to Ct. Sanjay Kumar for registration of FIR. Ct. Sanjay Kumar went to the PS and got the FIR registered and returned back with the copy of FIR and original rukka and handed over the same to him for further investigation. He prepared the site plan as Ex. PW3/D. The scooter was taken into possession vide seizure memo Ex. PW3/E. Accused was arrested vide memo Ex. PW3/G after his personal search vide memo Ex. PW3/F. The accused was produced by the owner of the scooter. The vehicle was got mechanically examined vide memo Ex. PW1/A. The scooter was released on superdari and accused was released on bail. He recorded the statement of the witnesses, and prepared the challan and filed in the court on behalf of SHO.
FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 4 of 28 The witness has correctly identified the accused.
The witness was cross examined at length by the Ld. Counsel for the accused.
PW4 HC Suresh Kumar, Duty Officer and have proved the registration of the FIR no. 348/00 Ex. PW4/A and the endorsements on the rukka of the said FIR as Ex. PW4/B. PW5 Ct. Sanjay Kumar, Investigating witness, has deposed that on 03.07.2000 on receipt of DD no. 15A Ex. PW3/A regarding accident, he along with SI B.P. Singh went near Natraj Cinema and found scooter bearing no. DL4SY2252 in accidental condition. The information regarding the shifting of the injured to the DDU hospital was received vide DD no. 16A which is already Ex. PW3/B. Thereafter, SI B.P. Singh came at the spot and gave him tehrir Ex. PW3/C and handed over the rukka to him for registration of FIR. He went to the PS and got the FIR registered and returned back with the copy of FIR and original rukka and handed over the same to SI B.P. Singh for further investigation. Thereafter, SI B.P. Singh took the possession of the said scooter vide seizure memo Ex. PW3/E. Thereafter, he came back to PS Moti Nagar where accused Mohd. Iqbal Parvej present in the court today, met SI B.P. Singh and arrested the accused vide arrest memo Ex. PW 3/G and took the personal search of accused vide seizure memo Ex. PW3/F and thereafter IO recorded his statement.
FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 5 of 28 The witness has correctly identified the accused.
The witness was cross examined by the Ld. Counsel for the accused. PW6 Dr. Ajay Sharma, Medical Officer, DDU Hospital has deposed that he had seen the MLC no. 5158 vide which the injured Harish was medically examined by Dr. Pranab (JR). The MLC is in the hand writing of Dr. Pranab and the same is Ex. PW6/A bearing the signatures of Dr. Pranab at Point A. The witness has identified the handwriting and signatures of Dr. Pranab as the witness seen Dr. Pranab signing and writing during the course of his official duties and Dr. Pranab had also worked under his supervision and had left the said hospital.
4. No other Prosecution witness was examined. Prosecution Evidence was closed and Statement of the accused was recorded on 08.06.2011 wherein the accused had admitted the driving of the scooter at the aforesaid time and place but had stated that he was neither rash nor negligent in his driving and the complainant was not struck by him. The accused has further stated that the injured himself was negligent. In fact the complainant/injured was hit by a car and not by his scooter. The accused preferred to lead the evidence in his defence for discarding the truthfulness and putting a shadow on the case of the prosecution and examined Sh. Anwar Alam as DW1 in support of his case.
5. DW1 Sh. Anwar Alam has deposed that on 03.07.2000 he was going with the accused on his scooter. When they reached in front of Natraj Cinema a FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 6 of 28 person was hit by a car which was running in front of them. They stopped the scooter and took the injured to the hospital. The police came at the hospital and falsely implicated the accused Mohd. Iqbal Parvez in the present case.
6. The witness was cross examined by the Ld. APP for the state.
7. Ld. Counsel for the accused has submitted that the prosecution has miserably failed to prove its case against the accused as no independent public witness is examined by the prosecution except the complainant and the same cannot form the basis of conviction of the accused. It is also alleged by the Ld. Counsel for the defence that there are material contradiction in the statement of the complainant/injured and other prosecution witnesses and the MLC of the injured. The prosecution has failed to establish the exact place of the accident. It is further argued by the Ld. Counsel for the accused that prosecution is under obligation to prove specifically the rashness of the accused as the presumption of the same cannot be drawn merely on the statement of the witnesses.
8. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
9. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under: " In a criminal trial, it is for the prosecution to establish its case FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 7 of 28 beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
10. Now, the stage has been set to appreciate the evidence on record in the light of the following essential ingredients of the offence alleged to be committed by the accused.
Essential Ingredients of Offence U/sec 279 IPC and 337 IPC are as follows :
To establish offence Uunder Section 279 IPC, the prosecution has to satisfy the following ingredients:
a) A person drives any vehicle or rides (any human being)
b) Such driving or riding is on any public way.
c) It is done in a manner so rash or negligent:
i) as to endanger human life or,
ii) as to be likely to cause hurt or injury to any other person.
To prove the offence Under Section 337 IPC, the prosecution has to satisfy the following ingredients:
a) That injury has been caused by doing any rash or negligent act. FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 8 of 28
b) That such injuries are simple in nature.
Thus basic ingredients of the offence is rash or negligent act /driving and the injury on the person of injured.
So, the requirement for the applicability of section 337 IPC are that the injury to any person, must have been caused by the accused by doing any rash and negligent act. In other words it must be proved that the rash and negligent act of the accused was the proximate cause of injury. There must be direct nexus between injury to the person and rash and negligent act of the accused.
11. In a nutshell to prove the case against the accused the prosecution was under the obligation to prove the following essential ingredients of the offence punishable u/s 279/337 IPC:
1. Identity of the accused being the driver of the offending vehicle.
2. That the alleged accident is the result of rash and negligent driving of the accused at a public place.
3. The rash and negligent driving of the accused resulted in the injuries on the body of the injured.
12. I shall now proceed to consider the oral and documentary evidence produced by the prosecution in support of their case to find out whether the FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 9 of 28 prosecution has been successful in bringing the cogent evidence for justifying the conviction of the accused or whether the accused has been able to cast a shadow on the prosecution case for securing his acquittal in the present case.
13. I shall discuss the evidence visavis each essential ingredients of the offence alleged against the accused.
IDENTITY OF THE ACCUSED AND THE OFFENDING VEHICLE
14. The first and foremost ingredients for proving the case against the accused is the establishment of the identity of the accused by the prosecution being the one who caused the present accident. The accused is identified by PW2 the complainant/injured Harish Chand, PW3 Investigating Officer and PW5 Ct. Sanjay to be the one who caused the accident. The PW2 Harish Chand the complainant had categorically in his deposition stated that the accused Mohd. Iqbal Parvez was driving the vehicle at a very fast speed and hit the same to him consequent to which he received injuries and two of his tooths were broken and the toes were crushed. Moreover, the DW1 Anwar Alam who was examined by the accused in support of his case had deposed that they stopped the scooter after the accident and took the injured to the hospital. The accused in his statement u/s 313 Cr.P.C. had also admitted the factum of the driving of his scooter at the aforesaid time and place and has also admitted the factum of the accident whereby the injured sustained the injuries but with a ridder that the injured was not hit by his FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 10 of 28 scooter but by the car of some unknown person.
15. Apart from it the prosecution has also proved the mechanical inspection of the offending scooter bearing no. DL4SY2252 by examining ASI Devender as PW1. The witness had proved the mechanical inspection report of the scooter Ex. PW1/A and has deposed that the right side body and beading of the scooter was dented and had scratch marks. The same also goes to shows that the offending scooter being driven by the accused at the relevant point of time was involved in the accident as the accused has failed to explain the aforesaid dented body and the scratch marks on his scooter.
16. It is also argued by the Ld. Counsel for the accused that the prosecution has neither cited nor examined the Nem Chand Jain as the prosecution witness who was stated to be present along with the accused at the time of the accident.
17. The arguments seems to be ill founded and devoid of any merit as the accused cannot direct the investigating agency to examine a particular person as a witness as it is entirely the prerogative and the privilege of the prosecution to decide the name and number of the witnesses for examination in support of their case. Further the quality of the witness decide the fate of the case and not the quantity of the witnesses.
18. The deposition of the injured coupled with the admission of accused in his statement u/s 281 Cr.P.C. r/w 313 Cr.P.C., further coupled with the deposition FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 11 of 28 of DW1 Anwar Alam whereby he had admitted that they stopped the scooter and took the injured to the hospital further coupled with the mechanical inspection report Ex. PW1/A goes to establish beyond reasonable doubt the involvement of the accused and his scooter in the alleged accident and the presence of the accused on the spot and his identification on the spot by the injured.
19. Ld. Counsel for the accused has also argued that no TIP of the accused were conducted by the IO and the first time, identification of the accused in the court cannot be relied upon for establishing the identity of the accused. The DW1 Anwar Alam had himself admitted that he along with accused took the injured to the hospital. The same shows that the injured had ample opportunity for identifying the accused as sufficient time was available to the complainant for remembering the various features of the accused persons. In my opinion the submission of the Ld. Counsel is without merit and is liable to be rejected in totality in view of the aforesaid finding of the court regarding the identification of the accused on the spot by the injured/complainant. In Vaikuntam Chandrappa and others v. State of Andhra Pradesh AIR 1960 SC 1340. The Hon'ble Apex court observed that the statement of the witness in the court is substantive piece of evidence but the purpose of TIP is to test that substantive piece of evidence and the safest rule is on oath testimony of the witness in the court regarding the identity of the accused who is stranger to the witness. But the same also requires corroboration with the earlier FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 12 of 28 identification proceedings or any other evidence. The same principles was reiterated and followed in Budh Sen and others v. State of UP 1970 Cri.L.J. 1149, Ronny @ Ronald James alvaris and others v. State of Maharashtra, 1998 Cri.L.J. 1638 and Rajesh Govind Jagesha v. State of Maharashtra, 2000 Cri.L.J.
380.
20. It is also well settled that the identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witness to identify the persons who are alleged to have been involved in the offence or to identify the properties which are the subject matter of the alleged offence, in ordinary course, belongs to the investigation stage and they serve to provide the investigating authorities with the material to assures themselves regarding the right directions of the investigation. The identification parade are generally conducted for ascertaining that the suspect persons are the real culprits. The same is observed by the Hon'ble Apex Court v. State of Jammu and Kashmir, 1972 Cri.L.J. 15 and Ravindra @ Ravi Bansi Gohar v. State of Maharashtra (1998) 6 SCC 609.
21. In Kanta Prasad v. Delhi Administration 1958 Cri.L.J. 1698 and State of Maharashtra v. Sukhdev Singh 1992 Cri.L.J. 3454 . t he apex court settled the dust by observing that the mere failure to hold test identification parade, does not make the evidence of identification in the court inadmissible rather the same is very FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 13 of 28 much admissible in law. Ordinarily identification of the accused for the first time in the court by the witness should not be relied upon, the same from its very nature, is inherently of a weak character unless the same is corroborated by his previous identification in the TIP or by any other evidence. The purpose of the TIP is to test the observation, grasp , memory , Capacity to recapitulate of a witness and to ascertain if can be used as a reliable corroborated evidence of the witness identifying the accused at its trial in the court. If a witness identifies the accused in the court in the first time, the probative value to such uncorroborated evidence becomes minimal so much so that it becomes of a rule of prudence and not law and it is unsafe to rely on the deposition of such a witness. But the aforesaid oridinary rule is not the absolute rule and is subject to certain exceptions. In State of Maharashtra v. Sukhdev Singh (Supra) it was held that if a witness had any particular reason to remember about the identity of an accused, in that event the case can be brought under the exception and conviction can be based upon the solitary evidence of the identification of an accused in the court for a first time. Similarly in the case of Ronny @ Ronald James alvaris and others v. State of Maharashtra, 1998 Cri.L.J. 1638 it was held that where the witness had a chance to interact with the accused or that in a case where the witness had the opportunity to notice the distinctive feature of the accused which rends credence ssurance to his testimony in the court. The evidence of the identification of the accused in the court FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 14 of 28 for the first time by such witness cannot be thrown away merely because no identification parade was held. In the case of Rajesh Govind Jagesha v. State of Maharashtra, 2000 Cri.L.J. 380 it was laid down that the absence of the TIP may not be fatal if the accused is sufficiently described in the complaint which leaves no doubt in the mind of the court regarding his involvement or the accused is arrested on the spot immediately after the occurrence and in either eventuality the evidence of a witness identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence. In view of the aforesaid discussion coupled with the fact that the complainant in his complaint Ex. PW2/A had specifically named the name, parentage and the address of the accused coupled with the identification of the accused in the court by the injured, further coupled with the admission of the accused in his statement u/s 281/313 Cr.P.C. and the deposition of DW1 Anwar Alam. In my opnion the identity of the accused as the driver of the offending vehicle has been proved beyond reasonable doubt.
22. Ld. Counsel for the accused had also argued that the accused was not driving the offending vehicle and the injured was not hit by his scooter but by a car of unknown person. The aforesaid defence of the accused seems to be an after thought as no suggestion regarding the same was put to the complainant PW2 during his cross examination in the court and the Hon'ble Apex Court in Bhajjan FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 15 of 28 Singh @ Harbhajan Singh & others v. State of Haryana 2011 AIR (SC) 2552 have observed that the accused cannot raise an altogether new defence in the final arguments without cross examining the witnesses on the relevant aspect and without giving an opportunity to the witnesses to explain the same. The PW2 complainant Harish was cross examined at length but no suggestion regarding the same was put to him. In view of the same I do not find any force in the aforesaid arguments of the Ld. Defence Counsel .
RASHNESS OR NEGLIGENCE
23. The other most essential ingredients to be proved by the prosecution for the offence under sections 279/337 IPC against the accused is "Rash and Negligent Driving".
24. Before proceeding further, it is necessary to analysis what section 279 and 337 IPC say about rash or negligent driving. The section 337 IPC does not exactly specify what is meant by word rash and negligence.
As per Straight J. Criminal rashness " is doing a dangerous or Wanton Act with the knowledge that it is so, and that it may cause injury, but without intention to cause such injury, or with the knowledge that such injury will probably be caused". The criminality lies in running the risk or doing of such an act with recklessness or indifference as to its consequences. Criminal FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 16 of 28 negligence "is the gross and culpable neglect or failure to exercise reasonable and proper care and precautions to guard against any injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the consequences has arisen, it was the imperative duty of the accused persons to have adopted".
25. These observation won the approval of the Hon'ble Supreme Court in Bala Chandra Vs. State of Maharashtra (AIR 1968SC1319). In the said case, the Hon'ble Supreme Court has observed : "Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precautions to guard against any injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the consequences has arisen, it was the imperative duty of the accused person to have adopted".
26. The same was again approved by the Hon'ble Delhi High Court in Meghna Singh vs. State 2012 LE (DEL) 254 and by the Hon'ble Apex Court in Prabhakaran v. State of Kerela AIR 2007 Supreme Court 2376 "....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 FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 17 of 28 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.
The distinction has been very aptly pointed out by Holloway J. in these words:
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection".
27. In a case of rash or negligent driving, the test is whether the prosecution has proved that :
(i)The accused was driving the vehicle in such a manner so as to create an obvious and serious risk of causing physical injury to some other FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 18 of 28 person who might happens to be using the road or of doing substantial damages to the property.
(ii) In driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it.
(iii) The rash or negligent act must be the proximate cause of injury of the injured.
28. In the matter of Chaman Lal Vs State AIR 1954, ALL 186, it was observed that Rashness and negligence are not the same things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness and in order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing of such an act with recklessness and indifference to its consequences.
The Criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take.
29. The question whether the accused's conduct amounted to rashness or negligence directly depends on the question whether in the given circumstances, FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 19 of 28 the accused has acted prudently and reasonably and has taken the expected care and precaution in the given circumstances.
30. In the case of Rathna Shalvan v. State of Maharashtra 2001 1AD (CR) (SC 433) the Hon'ble Apex Court also has approved the aforesaid definition of criminal rashness and the criminal negligence in the aforesaid terms.
In Niranjan Singh Vs State (Delhi Administration), 1997 Cri LJ 336, it was observed that the main criteria for deciding whether the driving which lead to the accident was rash and negligent is not only speed of the offending vehicle but deliberate disregard to the obligations of its driver to drive with due care and attention and taking a risk indifferent to harmful consequences resulting from it. In case of this nature, the test is whether the prosecution has prove that :
(i) The accused was driving the vehicle is such manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damages to the property.
(ii) In driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it, and,
(iii) The rash or negligent act of the accused was the proximate cause of the injury of the injured.
" To impose criminal liability under section 337, Indian Penal Code, it FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 20 of 28 is necessary that the injury should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and sufficient cause without the intervention of the author's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non".
31. In Mahammed Aynudin V. state of A. P., AIR 2000 SC 2511, It was also observed: Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution for guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of the vehicle to adopt such reasonable and proper care and precaution".
32. Now, the stage is set to apply the aforesaid legal position to the facts of present case and the testimony of the complainant/injured is most relevant for proving the rashness and negligence of the accused. The complainant Harish is examined as PW2 and has categorically deposed that on 03.07.2000 at 04.00 PM while he was crossing the road near Natraj Cinema for going towards Kirti Nagar one two wheeler scooter came from the side of Raja Garden. The scooter was being driven at a fast speed by accused Mohd. Iqbal Parvej and three persons were riding on the same. The same hit him and its impact made him to jump. He received the injuries as his toes were crushed. Two of his tooths were also broken.
33. Ld. Defence Counsel has argued that the deposition of the FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 21 of 28 complainant/injured PW2 suffered from various contradictions and the complainant has not deposed in terms of his complaint Ex. PW2/A and had given an improved statement in the court and the same cannot be believed being an outcome of the after thought. The submission of the Ld. Counsel is devoid of any merit and the same is liable to be rejected. As the Hon'ble Apex Court in State of UP v. Naresh and others AIR 2011 SC (Criminal) 761 has observed that the evidence of the injured witness must be given the due weight age being a stamped witness, thus his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailants in order to falsely implicate some one else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained the injuries at the time and place of the occurrence and this lends support to his testimony that he was present during the occurrence. Thus the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailants to go unpunished merely to falsely implicate a third person for the commission of the offence. Thus the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. Therefore, the evidence of the eye witness could not be brushed aside due to minor variations. Mere contradictions on the trivial matters could not render his depositions untrustworthy. Further, it is well settled principle FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 22 of 28 of law that the improvements made by the witness in his testimonies will be fatal only if the same changes the basic / fundamental character of the case. The testimony of the witness can be believed where the witness has only tried to explain something and the same does not changes the fundamental nature of the case. In the present case the witness has tried to explain the manner of the accident by the accused persons by riding the offending scooter with three persons. The Ld. Counsel had argued that the factum of riding of the scooter by the three persons is introduced by the complainant in his deposition in the court and the same was not disclosed to the IO. In view of the aforesaid observations the submissions of the counsel does not find any favour with the court as the aforesaid deposition of the witness cannot be assumed to change the basic / fundamental nature of the case.
CAUSE OF INJURIES
34. The third most essential ingredients to be proved by the prosecution for securing the conviction of the accused for the offence punishable u/s 279/337 IPC is that the injuries inflicted on the person of the injured are the direct result of rash and negligent act of the accused. The prosecution had alleged that the complainant / PW2 Harish Chand had suffered the simple injuries on his body because of the impact of the strike of the offending scooter of the accused. The complainant Harish Chand is examined as PW2 and had deposed regarding the injuries inflicted on his body consequent to the alleged accident. In support of its case the FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 23 of 28 prosecution has also examined Dr. Ajay Sharma as PW6 who has proved the MLC as Ex. PW6/A. The said MLC was prepared by Dr. Pranab who is reported to have left the service in the said hospital. The MLC is in the handwriting of Dr. Pranab and the handwriting and signatures of Dr. Pranab are duly identified by Dr. Ajay Sharma with whom the said Dr. Pranab has worked as his subordinate and whom Dr. Ajay, PW6 has seen signing and writing in course of his official duties. The witness was not at all cross examined by the counsel for the accused and the testimony of the witnesses unrebutted. The law is well settled that if a witness is not cross examined on a particular issue by the opposite party, the evidence of the witness ought to be accepted. The reliance is placed on the judgment of Sarwan Singh vs. State of Punjab (2003) 1SCC 240 wherein it was observed that "it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination it must follow that the evidence tendered on that issue ought to be accepted".
35. In view of the aforesaid findings the Court is of the considered view that the prosecution has proved beyond reasonable doubts that the accused Mohd. Iqbal Parvej has inflicted the injuries on the body of the injured Harish Chand, PW2 by driving his scooter bearing no. DL4SY2252 in a rash and negligent manner on a public way and thereby committed the offence punishable u/s 279/337 IPC.
FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 24 of 28
36. Accordingly, the accused Mohd. Iqbal Parvej stands convicted for commission of offence punishable U/s 279/337 IPC.
37. Convict be heard separately on the quantum of sentence.
38. Copy of judgment be supplied to the convict free of cost.
Dictated, Signed and Announced in the (Sunil Kumar Sharma)
Open Court on 05.12.2012 Metropolitan Magistrate
(West10), Tis Hazari Court,
Delhi
It is certified that this judgment contains 25 (twenty five) pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate (West10),Tis Hazari Court, Delhi FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 25 of 28 THE COURT OF SH SUNIL KUMAR SHARMA METROPOLITAN MAGISTRATE TIS HAZARI COURTS : DELHI ORDER ON SENTENCE State Vs. Mohd. Iqbal Parvej FIR No. 348/00 U/s 279/337 IPC P.S. Moti Nagar 19.12.2012 Present: Ld. APP for the State.
Convict in person with counsel.
It is submitted by the counsel for the convict that the convict is a young person of 29 years and is a driver by profession having a wife and two minor children to support.
He never remained absent from the Court and the convict prays for a lenient view as he is not involved in any other case of whatsoever nature till date and also undertakes not to repeat the same offence in future.
The Ld. APP for the State has vehemently argued that in view of the gravity of offence, maximum sentence be inflicted upon the accused.
Submission heard. Record perused and carefully considered. FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 26 of 28 The judgment indicates the fact that on 03.07.2000 at about 05.00 PM at Najafgarh Road near Natraj Cinema within the jurisdiction of PS Moti Nagar the accused was found driving the vehicle bearing registration no. DL4SY2252 in a rash and negligent manner so as to endanger human life and personal safety of the others and while driving the aforesaid vehicle in the aforesaid manner caused simple injuries on the person of complainant Harish and thereby committed an offence punishable u/s 279/337 IPC.
The nature of offence is serious. At the same time the age of the convict and his family circumstances are equally important and are to be considered alongwith the fact that the convict is facing the trial since 2000. Further the convict is not involved in any other case and has shown the inclination for reformation.
Having regard to facts, of the case, aggravating and mitigating circumstances, I am of the considered view that the convict deserves some leniency and infliction of maximum punishment shall not meet the ends of justice.
Keeping the facts and circumstances of the case, the convict is sentenced to under go simple imprisonment of 2 months and to pay a fine of Rs. 1,000/ for the offence punishable U/sec 279 IPC in default of the payment of fine the convict shall be liable to under go simple imprisonment for 10 days. The convict is also sentenced to under go simple imprisonment of 2 months and to pay a fine of Rs. 500/ for the offence punishable U/sec 337 IPC in default of the FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 27 of 28 payment of fine the convict shall be liable to under go simple imprisonment for 10 days.
Both the sentences shall run simultaneously.
The fine is paid vide receipt no. 893482 dated 19.12.2012. Copy of judgment and copy of order on point of sentence be provided to the convict / Ld. Counsel for the convict free of cost.
File be consigned to Record room.
(Sunil Kumar Sharma) Metropolitan Magistrate (West )10, Delhi 19.12.2012 FIR no. 348/00 State v. Mohd. Iqbal Parvej Page no. 28 of 28