Delhi District Court
State vs . Mehboob Alam on 2 May, 2012
1
IN THE COURT OF MS. NAVITA KUMARI BAGHA: MM, NEW DELHI
STATE VS. MEHBOOB ALAM
FIR NO. : 129/01
P.S. : Tilak Marg
U/Sec. : 279/338 IPC
JUDGMENT :
a) Srl. No. of the case & Date of institution : 841/2 & 14.05.2002
b) Date of commission of offence : 13.10.2000
c) Name of the complainant : State through Sh. J.P. Tondon
d) Name of the accused : Mehboob Alam S/o Sh. HafizurRehman R/o Village Mehsol Chowk, P.S. Mehsol, Sitamarhi, Bihar.
e) Nature of offence complained of : U/Sec.279/338 IPC f) Plea of the accused person : Accused pleaded not guilty g) Date reserved for order : 13.04.2012 h) Final Order : Acquitted i) Date of order : 02.05.2012
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. In brief the accused Mehboob Alam is facing trial for offences punishable U/Sec.279/338 IPC on the allegations that on 13.10.2000 at about 4.00 p.m. in State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 2 front of Baroda House, Copernicus Marg, CHexagon Crossing, India Gate, New Delhi, within the jurisdiction of P.S. Tilak Marg, the accused was driving vehicle i.e. Tempo bearing No. UP14K1891 in rash or negligent manner so as to endanger human life and personal safety of others and while driving so, he struck against Scooter bearing No. DL2SG4881 and caused grievous injuries to the driver of said scooter namely Mr. J.P. Tondon.
2. After completion of investigation, chargesheet was filed. After supplying the copies to accused U/Sec.207 Cr.P.C, a notice U/Sec.251 Cr.P.C was served upon the accused on 05.03.2004 for the offences punishable U/Sec.279/338 IPC to which he pleaded not guilty and claimed trial.
3. The prosecution had cited 11 witnesses, out of which only 7 witnesses were examined.
4. Statement of accused was recorded U/Sec.313 Cr.P.C. on 30.01.2012 wherein he denied the case of the prosecution and pleaded innocence. He said that the scooter was coming from the wrong side and hit the tempo which was in standing position. He further said that he had taken the injured to RML Hospital and called his relatives in the hospital and the injured told the I.O./police personnel that it was his mistake and he did not want to register any case against the accused but later on after six months he filed the complaint for claiming insurance. However, the accused opted for not leading any evidence in his defence.
5. I have heard the final arguments from Ld. APP and Ld. defence counsel Sh. State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 3 J.K. Nayyar and gone through the record.
6. Let us first examine the evidence led by the prosecution. The first witness of the prosecution i.e. PW1 is H. Ct. Gyan Prakash who deposed that on 10.04.2001 he was posted at P.S. Tilak Marg as Head Constable and working there as Duty Officer from 4.00 p.m. to 12.00 a.m. and on that day at about 5.45 p.m. he received rukka Mark X produced before him by the I.O./ASI Rajiv Nayan and on the basis of said rukka he recorded FIR No.129/2001 U/Sec.279/337 IPC which is Ex.PW1/A and made endorsement on the said rukka which is Ex.PW1/B.
7. PW2 is injured J.P. Tondon who deposed that on 13.10.2000 he was coming from Connaught Place and was going towards his home at Bhogal, New Delhi on his two wheeler scooter bearing no. DL2SG4881 and when at about 4.00 p.m. he reached near Copernicus Marg near Baroda House, one tempo bearing No.UP14A1891 came from behind in a rash and negligent manner and in a fast speed and hit his scooter from behind as a result of which he fell down on the road under the front tyre of the tempo and sustained injuries on his both legs. He further deposed that the PCR Van came there and took him to RML Hospital and after the first aid he was taken to Mool Chand Hospital by his family members. He further deposed that he remained on bed for 34 months and on 10.04.2001 he went to P.S. Tilak Marg and gave his complaint Ex.PW2/A to the SHO P.S. Tilak Marg. He further deposed that the accused was the person who was driving the offending tempo at the time of accident. In his crossexamination by the Ld. defence counsel, he said that the accident had taken place at 4.004.15 p.m. and the PCR van came around 6.00 O' Clock and State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 4 that he was conscious when taken to RML Hospital. He further stated in his crossexamination that he had met the I.O. on the day of accident who told him to sign on blank papers but he refused to do so. However, he denied the suggestion that he had told the I.O. that he did not want to file any case against the accused. He also denied that the statement Mark D was given by him to the I.O. He also did not recognize the signature at the bottom of Mark D of Sumit Sahani, under whom he was working. However, he admitted that Sumit Sahani was present in the hospital on the day of incident. He further stated in his cross examination that he was conscious at the time when he got himself discharged from RML Hospital. He further stated that he did not remember whether he had handed over his treatment papers of Mool Chand hospital to the I.O. He further stated that he was taken to Mool Chand Hospital in the night of 13.10.2000 and he remained admitted there for 1 ¼ months. He further stated in his cross examination that he did not remember whether the offending vehicle was driven by the accused Mehboob Alam. He denied the suggestion that he was driving on the wrong side and fell down of his own fault and due to that reason he did not pursue the case till 10.04.2011 and that he had lodged the FIR for third party claim only.
8. PW3 is H. Ct. Ishwar Singh who deposed that on 24.04.2001 he was posted at P.S. Tilak Marg and on that day further investigation of the case was assigned to him. He further deposed that on 25.05.2001 a notice U/Sec.133 M.V. Act i.e. Ex.PW3/A was served upon Mohd. Ehsan, the registered owner of the offending vehicle bearing number UP14K1891, and he filed his reply Ex.PW3/B. He further deposed that the tempo was seized vide seizure memo Ex.PW3/C. He State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 5 further deposed that on 05.11.2001 accused Mehboob Alam was produced by his father in the police station whose old and new driving licences were seized vide memos Ex.PW3/C and Ex.PW3/D and his personal search was conducted vide personal search memo Ex.PW3/E. He further deposed that the scooter and tempo were got mechanically inspected from mechanical inspector T.U. Siddiqui whose reports are Ex.PW3/F and Ex.PW3/G and that both these vehicles were released on superdari vide superdaginamas Ex.PW3/H and Ex.PW2/B.
9. PW4 is Mohd. Ehsan, owner of Tempo TATA407 bearing No.UP14K1891, who deposed that he was owner of the said tempo since 1997 and that on 13.10.2000 the said tempo had met with an accident with two wheeler scooter. He further deposed that on 26.05.2001 a notice U/Sec.133 M.V. Act i.e. Ex.PW3/A was served upon him by the police and he gave his reply which is Ex.PW3/B and the tempo was later on taken by him on superdari vide superdaginama Ex.PW3/H. He further deposed that accused Mehboob Alam was driving the said tempo on that day.
10. PW5 is Deen Dayal, Record Clerk from RML Hospital who deposed that Dr. M. Kaushik had suffered paralytic attack on 07.01.2007 and had not joined his duties and therefore he was deputed by the Medical Superintendent to prove MLC bearing No. 12857/2000 of injured J.P. Tandon which was prepared by Dr. M. Kaushik, the then Medical Officer. He further deposed that the opinion regarding nature of injuries was given by Dr. Balwinder Rana who had left the services of the hospital and his whereabouts were not known. He further State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 6 deposed that he could identify the handwriting and signatures of both these doctors as he had seen them writing and signing during official course of his duties. He identified the signatures of Dr. M. Kaushik at point A1 and of Dr. Balwinder Rana at point A2 on MLC Ex.PW5/A.
11. PW6 is the first I.O./S.I. Rajiv Nayan who deposed that on 13.10.2000 he was posted at P.S. Tilak Marg and on that day he received DD No.11A regarding accident at Copernicus Marg and after receipt of the said DD he alongwith Ct. Dayanand reached at the spot where they found the scooter bearing No. DL2S G4881 and tempo bearing no. UP14K1891 in accidental condition. He further deposed that the injured was already taken to RML Hospital by the PCR Van and he went to RML Hospital while leaving Ct. Dayanand at the spot and obtained the MLC of injured J.P. Tondon as per which he was declared fit for statement. He further deposed that he interrogated the complainant/injured but he alongwith his family members refused to lodge any complaint and thus the said DD was kept pending in DD No.17. He further deposed that on 10.04.2001 one person produced a typed complaint for registration of FIR and he made endorsement on it which is Ex.PW6/A and same was handed over to Duty Officer in the Police Station. He further deposed that he prepared the site plan Ex.PW6/B at the instance of complainant/injured and then the scooter was seized vide seizure memo Ex.PW6/C on 13.04.2001. He further deposed that thereafter he was transferred and he handed over the case file to MHC(R). In his crossexamination by the Ld. Defence counsel he stated that when he reached the RML Hospital on the day of incident, the injured gave his statement that he did not want to register any case. He further stated that he had State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 7 recorded statement of the injured in the presence of his family members which is Ex.PW6/D. He admitted that the site plan Ex.PW6/B has not been prepared correctly as in the site plan the Baroda House is shown on the left side while coming from Mandi House and the Princesses Park is shown on the right side whereas in fact Baroda house is on the right side and Princesses Park is on the left side. He admitted it correct that the complainant wanted to lodge a third party claim after about five months and therefore the FIR was got registered by him. He further deposed that the complainant had not got any insurance claim from the insurance company because the vehicle was not insured and therefore he wanted to lodge a complaint for claiming insurance claim from the company.
12. PW7 is T.U. Siddiqui who deposed that on 06.05.2001 he had mechanically inspected Bajaj Chetak Scooter bearing no. DL2SG4881 and TATA Tempo bearing no. UP14K1891 and submitted his reports which are Ex.PW3/F and Ex.PW3/G. He further deposed that as per his report, the front mudguard of scooter, engine cover, C.B. and hand brake lever of the scooter were damaged.
13. Ld. APP has argued that the prosecution has proved the case against the accused and he be punished U/Sec.279/338 IPC. But the counsel for the accused has argued that the prosecution has remained unsuccessful to prove the case against the accused as neither it has been proved that the accident had taken place due to rash or negligent driving of the accused nor it has been proved that the injuries, suffered by J.P. Tondon, were caused due to the rash or negligent act of the accused. He further argued that the accident had occurred due to the fault of the complainant/injured himself who was coming from the State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 8 wrong side as he was coming from Tilak Marg and was going towards Copernicus Marg. He has further argued that since there was no fault of the accused so the injured did not lodge any complaint at the time of incident however he subsequently lodged the complaint in order to get third party insurance as his vehicle was not insured.
14. The accused has been booked in this case U/Sec.279/338 IPC. In order to prove offences U/Sec.279/338 IPC, there must be rash or negligent driving by the accused and the grievous hurt must have been caused by the rash or negligent act of the accused. In the present case, the prosecution was required to prove that the accident had taken place due to the rash or negligent driving of the accused and that the grievous injuries to the injured J.P. Tondon were caused due to the hitting of his scooter by the tempo driven by the accused. In order to prove the same the prosecution has examined only one material witness i.e. the injured/PW2 J.P. Tondon as all other witnesses are formal witnesses. But there are lot many contradictions in the testimony of PW2. He, in his examinationinchief, said that the accused Mehboob Alam was driving the offending Tempo/vehicle at the time of accident but during his cross examination he said that he could not remember if the offending vehicle was driven by the accused Mehboob Alam. He deposed that he went to P.S. Tilak Marg on 10.04.2001 and gave his complaint to SHO which is Ex.PW2/A. But perusal of the said complaint reveals that the same was given on 02.01.2001. He has deposed that the PCR van reached the spot at around 6.00 p.m. and then he was taken to RML Hospital. But as per the MLC Ex.PW5/A he was brought to RML hospital at 4.20 p.m. During crossexamination he first said that State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 9 he did not remember if he had met the I.O. on the day of accident but later on he said that the I.O. had met him on the day of accident and asked him to sign on blank paper which he refused. In his complaint Ex.PW2/A he has stated that he remained in hospital for two months but in his testimony he said that he remained in hospital for 1 ¼ month. He has deposed that the offending vehicle/tempo had hit his scooter from behind but as per the report of the mechanical inspector i.e. Ex.PW3/F, the front mudguard of his scooter was damaged. If the scooter was hit from behind then there is rare chance of damage of front mudguard. On the other hand if the scooter is hit from the front side then there is very likelihood of damage of its front mudguard. The contention of the accused that the injured was coming from wrong side i.e. from Tilak Marg to Copernicus Marg, and then hit the tempo of the accused seems to be convincing in this scenario. In his complaint dated 02.01.2001, addressed to the SHO P.S. Tilak Marg, the complainant/injured PW2 had requested for issuance of copy of FIR to him for lodging Third party insurance claim. The defence counsel has argued that initially the injured had refused for any police action because he himself was at fault at the time of accident but later he lodged the police complaint after six months in order to get third party insurance claim because his vehicle was not insured. The prosecution's own witness i.e. the previous I.O./PW6 S.I. Rajiv Nayan has also deposed that on 13.10.2000 i.e. on the day of incident the injured and his family members had refused to lodge any complaint but later on the complaint for registration of FIR was lodged by the complainant/injured because he wanted to lodge third party insurance claim as his own vehicle was not insured. Though the injured/PW2 has denied the suggestion that he had filed the complaint Ex.PW2/A just for State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 10 taking third party claim but he has utterly failed to give any satisfactory reason that why the complaint was lodged by him after so much delay i.e. after a delay of almost six months. The only explanation given by him is that he remained admitted in Mool Chand Hospital for about 1 ¼ months. But the explanation does not seem to be plausible as first of all it is not explained/proved as to why he was shifted to Mool Chand hospital from RML hospital and secondly no documentary proof is given regarding his being admitted in Mool Chand Hospital, what to talk about the duration of his retention in the hospital ! As per the MLC Ex.PW5/A he was fit for statement. He himself admitted in his cross examination that he was conscious at the time of his discharge from RML hospital. He said that he personally got himself discharged from the said hospital but neither any reason has been cited for the same nor there is any other evidence showing any emergency for shifting him from RML hospital to Mool Chand hospital. Moreover there is no documentary evidence as to whether he was really admitted in Mool Chand hospital and if so, then for what particular period. So in the absence of the same it has remained unexplained that why the complaint was lodged by the complainant after a lapse of six months. It is settled law that the delay in lodging the first information report quite often results in embellishment as a result of afterthought and on account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It has been held by the Hon'ble Supreme Court in Dilawar Singh Vs. State of Delhi, AIR 2007 SC 3234, "In criminal trial one of the cardinal principles for the Court is to State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 11 look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case." In the present case also the delay in filing the complaint has not been sufficiently explained. The explanation given by the injured is neither satisfactory nor plausible. The contention of the accused, on the other hand, regarding the filing of complaint for taking third party insurance claim, seems convincing as the injured himself had requested the police in the said complaint to issue him a copy of FIR for getting third party claim and moreover the prosecution's own witness PW6 has also deposed that the injured and his family members had refused to lodge any complaint on the day of accident but later on after five months the injured filed the complaint in order to get third party claim. Thus the delay in filing of complaint in this case is fatal to the prosecution case. The prosecution has remained unsuccessful in proving that the accident had occurred due to the rash or negligent driving of the accused or that the injured J.P. Tondon had suffered grievous injuries due to the rash or negligent act of the accused. Hence in the light of the abovesaid, it is clear that the prosecution has failed to prove its case beyond reasonable doubt against the accused and therefore he is acquitted for the offences punishable U/Sec. State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 12 279/338 IPC. His Bail Bond is cancelled. His surety is discharged. Endorsement on the documents of the surety, if any, be cancelled.
15. File be consigned to Record Room (Announced in open Court on 02.05.2012) (Navita Kumari) MM, New Delhi.
State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg 13 FIR No. 129/2001 P.S. Tilak Marg U/Sec. 279/338 IPC 02.05.2012 Present : APP for State. Accused with counsel
Vide separate judgment the accused is acquitted for the offences punishable U/Sec.279/338 IPC. His bail bond is cancelled. His surety is discharged. Endorsement on the documents of the surety, if any, be cancelled. Fresh Bail bond is furnished by accused U/Sec.437A Cr.P.C. which shall be valid for six months from today.
File be consigned to Record Room.
(Navita Kumari) MM/ND/02.05.2012 State Vs. Mehboob Alam FIR No.129/01 P.S. Tilak Marg