Delhi District Court
Shri Vishnu Shankar vs State (Govt. Of Nct Delhi) on 8 October, 2021
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
CA NO. 451/2019
Shri Vishnu Shankar
S/o Sh. Rammurti
R/o H. No. 822, Temple Road
Bhogal, New Delhi ... Appellant
VERSUS
STATE (GOVT. OF NCT DELHI) ...Respondent
First date before this court : 04.09.2019
Date of Decision : 08.10.2021
ORDER
1. An appeal under Section 374 (3) Cr.P.C. has been filed by the appellant against the conviction order dated 31.07.2019 vide which the appellant has been convicted under Section 279/338/474 IPC and order on sentence dated 05.08.2019 vide which he has been sentenced to simple imprisonment for one year under Section 474 IPC; a fine of Rs.1,000/- under Section 338 IPC and simple imprisonment for four months under Section 279 IPC in default of payment of fine, to undergo 02 days simple imprisonment.
2. Facts in brief are that on 16.03.2009 at about 9.15 pm while the injured Anuj was traveling as a pillion rider on the motorcycle bearing No. DL-3SAY-4009 which was being driven by his uncle Shri Sunder Chaudhary, the Canter bearing No. DL-1LK- 2019 which was being driven in a rash and negligent manner by the appellant hit the motorcycle because of which its driver fell on the CA No. 451/2019 Page 1 of 14 pages left side of the road while the injured along with motorcycle was dragged for a certain distance. The appellant was apprehended at a little distance by the public while the injured was taken to the hospital for his treatment.
3. FIR was registered on DD Entry No. 67B and the investigations were taken over by HC Umesh (ASI). He went to the Trauma Center where the injured had been admitted. On returning back to the scene of crime, he seized the two vehicles i.e. the Canter and the motorcycle and also arrested the accused and seized his driving licence and other documents of the offending vehicle. The notice was also served on Shri Sanjay Goel, the owner of the offending Canter who gave a statement that offending vehicle was being driven by the appellant. The statement of the witnesses were recorded and the medical record was collected.
4. On completion of the investigations, chargesheet under Section 279/338 IPC was filed in the court on 09.10.2009. Supplementary chargesheet under Section 474 IPC was filed on 23.08.2011. Notice under Section 251 Cr.P.C. was given under Section 279/338 IPC on 08.02.2010 to which the appellant pleaded not guilty. A charge under Section 474 IPC was framed on 10.04.2013 to which also the appellant pleaded not guilty.
5. The prosecution in support of its case examined 12 witnesses in all. PW1 Shri Sunder Chaudhary, the uncle of the injured was driving the motorcycle at the time of accident. He has CA No. 451/2019 Page 2 of 14 pages deposed about the manner of accident narrated above. His testimony is corroborated by injured PW2 Shri Anuj on all material aspects. PW3 ASI Pran Kachap was on PCR duty and had received a call about the accident on 16.03.2009 at about 9.15 pm. PW8 Ct. Subhash while posted in PS recorded DD No. 67B in regard to the accident which is Ex.PW8/A PW5 Shri Vipin Kumar was the photographer who took the photographs of the motorcycle and the canter which are Ex.P1 and Ex.P2 collectively. PW7 Shri T. U. Siddiqui conducted mechanical inspection of the motorcycle as well as the canter which are Ex.PW7/A and Ex.PW7/B respectively. PW9 Dr. Satya Prakash proved the MLC of injured as Ex.PW9/A. PW10 Shri Hariom Morya, Junior Assistant, RTO Office, Agra produced the details in regard to DL No. 6495/AG/06 as Ex.PW10/A. PW11 ASI Umesh Kumar along with PW6 Ct. Jagdish conducted the investigations. PW12 Shri Sanjay Goel is the registered owner of the offending vehicle who was served with the notice under Section 133 of Motor Vehicle Act in response to which he informed the police that the vehicle was being driven by the appellant on the date of incident.
6. The statement of the appellant was recorded separately under Section 313 Cr.P.C. wherein he stated that he was driving the vehicle in a proper manner at a speed of not more than 10-15 km/hour. At the time of accident the injured tried to overtake the vehicle from the wrong side. In support of his defence, he examined DW1 Shri Anand Kumar who deposed that he was helper with the appellant in the offending vehicle and that the accident occurred as CA No. 451/2019 Page 3 of 14 pages the motorcyclist overtook the canter from the wrong side. He has further deposed that they were stopped by the public persons and as they started beating the appellant, he went to one side and called the owner Sanjay Goel who immediately arrived at spot and went to the hospital to meet the injured. Subsequently, Shri Sanjay Goel came back and went inside the police station while he remained outside. DW2 Shri Shiv Chand Pandey has deposed that on the next date of the incident, Shailender (brother of appellant) took him to the police station. Appellant was sitting in police station and Sanjay Goel was also present. The appellant was released on bail but his driving licence was seized by the police and the appellant who generally signed as "Vishnu Shankar" was asked to sign his complete signatures and thus he signed as "Vishnu Shankar Sharma". Thereafter, they went back to their home. DW3 Sh. Om Prakash, Record Clerk, Transport Authority, Sheikh Sarai deposed that licence number P03012005439434 was issued to Vishnu Shankar Sharma on 22.01.2005 for light motor vehicle and was valid up to 21.01.2025. The extract of DL is Ex.DW3/A.
7. The learned MM concluded from the evidence of the injured, eye-witness and other prosecution witnesses that offence under Section 279/338/434 IPC was proved and the appellant was accordingly convicted under these sections. The learned MM vide order on sentence dated 05.08.2019 sentenced the appellant to simple imprisonment for one year under Section 474 IPC; a fine of Rs.1,000/- under Section 338 IPC and simple imprisonment for four months under Section 279 IPC, in default of payment of fine, to CA No. 451/2019 Page 4 of 14 pages undergo 02 days simple imprisonment.
8. Aggrieved by the order of conviction and sentence, the present appeal has been preferred.
9. Learned counsel on behalf of the appellant has argued that initially, the chargesheet was filed under Section 279/338 IPC. However, supplementary chargesheet under Section 474 IPC was filed with the allegation that the appellant was carrying a forged commercial driving licence. However, the appellant was having an original driving licence which was for Light Motor Vehicle. The owner Sanjay Goel in connivance with the IO HC Umesh substituted his original driving licence with a fake commercial driving licence in order to avoid the liability of payment of compensation under Motor Vehicle Act. The appellant had lodged a complaint against the owner for furnishing the forged driving licence in respect of commercial vehicle. It is further argued that at the time of incident, the vehicle was loaded with titles but as per the seizure memo the vehicle was empty. This also shows the connivance between the owner and the IO. Moreover, the alleged driving license was verified by the Insurance Company in 2011 and a report was given on the basis of their enquiry that the driving licence was fake. No independent investigations were carried out by the police in regard to the genuineness of the driving License. From the appearance of the driving licence itself it can be easily seen that it was freshly made driving licence which was subsequently introduced in the investigations. The Insurance Company had filed CA No. 451/2019 Page 5 of 14 pages a complaint with the police on the basis of which the supplementary chargesheet was filed. It is claimed that there is serious lapse on the part of the police in not independently investigating the genuineness of the driving licence. Moreover, the appellant had been working with the owner for last more than ten year. It is vehemently argued that the appellant was carrying a genuine driving licence but the forged driving licence in respect of commercial vehicle has been planted by the owner and no offence under Section 474 IPC is made out against him.
10. Learned counsel on behalf of the appellant has further argued that as per the IO, he did not meet any eye-witness in the hospital where he went immediately on getting information about the accident. Shri Sunder Chaudhary appeared in the Police Station on the next day claiming himself to be an eye-witness. It is quite evident that Sunder Chaudhary was not an eye-witness as has been claimed and has been planted by the police. The site plan which has been allegedly prepared at the instance of Sunder Chaudhary is also not reliable. Moreover, Sunder Chaudhary had denied that the site plan was prepared at his instance. The site plan does not have the signatures of Sunder Chaudhary. It is further argued that as per the eye-witness and the injured the offending vehicle had dragged the motorcycle for some distance when the injured stuck in it. However, as per the mechanical inspection there were minor damage to the motorcycle and there are no signs of it being dragged on the road. It is also argued that the injury claimed to have been suffered by Anuj is not proportionate to the impact of the accident. Learned counsel CA No. 451/2019 Page 6 of 14 pages for appellant has further argued that the accident happened in the year 2009 and the appellant has been facing the trial since then. It is claimed that he is entitled to be acquitted.
11. Learned Chief Public Prosecutor for State has argued that the testimony of the injured is fully corroborated by the eye-witness Sunder Chaudhary who was the uncle and was driving the motorcycle at the time of the accident. Furthermore, the testimony of the two witnesses is corroborated by the mechanical inspection report and also by the medical record. Moreover, the driving licence for commercial vehicle was seized from the accused on the spot by the IO and there was no occasion for the same to be replaced at the instance of the owner on a subsequent day. The record from the Transport Authority also proves that the driving licence which was seized from the appellant was a forged document. The appellant has been rightly convicted under Section 279/338/474 IPC and the appeal is liable to be dismissed.
12. I have heard the arguments and perused the record and the evidence recorded therein. My observations are as under:
13. The appellant had been charged under Section 279/338 IPC for driving the canter in a negligent manner and causing grievous injury to Shri Anuj. The main witness was PW-2 Shri Anuj the injured who has deposed that on 16.03.2009, he was traveling as a pillion rider on the motorcycle which was being driven by his uncle Sunder Chaudhary. When they reached near Sai Hospital at CA No. 451/2019 Page 7 of 14 pages 9.15 pm, one Eicher Canter came from the right side of their vehicle and hit it. His uncle fell on the left side while he fell on the right side. The motorcycle was dragged for a distance of about 1 km while he was stuck in it. The offending vehicle was being driven in a faulty manner at a speed of about 40-50 km/hour. The public apprehended the appellant on the spot while he was taken to Trauma Center by PCR. The witness was cross-examined by the counsel for the appellant but no material contradiction could be brought forth from the cross-examination. The testimony of PW2 Shri Anuj was fully supported by PW1 Shri Sunder Chaudhary, who had deposed on similar lines. He also deposed that the Canter had hit on its right side by his right side because of which he fell while the motorcycle along with pillion rider i.e. his nephew Anuj were dragged to a distance of about 200 meters. No material contradiction could be brought forth from his cross-examination as well.
14. Learned counsel on behalf of the appellant had argued that the alleged eye-witness PW1 Shri Sunder Chaudhary, uncle of the injured is a planted witness since he was not found present in the hospital when the IO went there on receiving information about the accident. Moreover, the site plan allegedly prepared at his instance does not bear his signatures and he in his testimony has denied that the site plan was prepared at his instance. It may be noted that after the accident which took place at about 9.15 pm, the injured PW2 Shri Anuj was taken to the hospital and the priority was to give him the treatment rather than on collecting the evidence. The IO may not have been able to find him present in the hospital but that in itself CA No. 451/2019 Page 8 of 14 pages cannot be a ground to conclude that he was not driving the motorcycle at the time of the accident. This witness had appeared in police station in the morning on the next date and his statement was recorded. Merely because his testimony was recorded in the morning on the next date does not make him a planted witness. Furthermore, even if his evidence is ignored then too the testimony of the injured supported by other documents and record sufficiently proves the accident and the manner in which it happened.
15. The appellant was apprehended along with offending vehicle Canter on the spot. The appellant also admitted that he was driving the vehicle. This fact is also proved from the testimony of PW12 Shri Sanjay Goel, the owner of the Canter who had deposed that he was served with the Notice under Section 133 Motor Vehicle Act Ex.PW11/B in response to which he gave a statement that the vehicle was being driven by his driver Vishnu Shankar on 16.03.2009 at about 9.15 pm. It may be noted that Sanjay Goel reached the Police Station soon after getting the information and he furnished the bail for the appellant. The response of the notice under Section 133 MV Act was also given by him at 10.00 am. The identity of the appellant as the driver of the vehicle is therefore admitted.
16. The only aspect which was disputed by the appellant was the vehicle was not being driven in a rash or negligent manner. It may be noted that it has been categorically deposed by the injured that the right side of the motorcycle was hit by the left CA No. 451/2019 Page 9 of 14 pages side of the offending vehicle. The Inspection Report of the motorcycle Ex.PW7/A mentions that there was a scratch on the headlight and right side of the Leg Guard had bent / scratched. Likewise, the mechanical inspection report of the Canter Ex.PW7/B shows that it is the left side front bumper of the Canter which was scratched and the left side front corner light was damaged. It is corroborated that it is the left front of the Canter which had hit the right side of the motorcycle.
17. The appellant has himself examined DW1 Shri Anand Kumar who had deposed that he was present as a Helper with the appellant in the vehicle at the time of incident. He further deposed that a motorcycle had tried to overtake their vehicle and in the process, the motorcycle touched the vehicle and fell. The vehicle was immediately stopped on the red light where 2-4 motorcyclists came in front of their vehicle and the appellant was apprehended. The defence witness is also supporting that the accident took place between motorcycle and canter. His claim that the motorcycle tried to overtake the canter is not supported by the damage to the two vehicles as proved in the mechanical inspection report. Rather, his testimony supports the case of the prosecution in regard to the accident having been caused by the appellant.
18. The only challenge is in regard to the rashness and negligence by the appellant. The rash act has been defined by the Supreme Court of India in Mohammed Aynuddin Vs. State of Andhra Pradesh (2000) 7 SCC 72 to be primarily an over-hasty CA No. 451/2019 Page 10 of 14 pages act. It is supposed to a deliberate act though it is deliberate in the sense that it was done without care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference to the consequences. Likewise, the Apex Court in S. N. Hussain Vs. State of Andhra Pradesh AIR 1972 SC 685 explained that the criminality lies in running the risk of doing an act with recklessness or indifference to the consequences.
19. In the present case, from the facts as proved by the prosecution beyond reasonable doubt clearly bring forth the rashness on the part of the Canter driver i.e. the appellant in driving the offending vehicle with a sense of indifference and thereby hit the motorcycle from its front left side. The learned MM has rightly concluded the rashness on the part of the appellant in driving the offending vehicle. The appellant has been rightly convicted under Section 279 IPC.
20. The MLC of the injured Ex.PW9/A shows that he had suffered rectal tear Grade IV and deformity in the pelvic region and was unable to move both the lower limbs. The injury suffered by the injured was opined as grievous. The notice had been served to the injured in the present appeal wherein he informed that he had received compensation in the sum of Rs.24 lacs as he has suffered permanent disability and is unable to cohabit. The appellant has been rightly convicted under Section 338 IPC.
21. The appellant has also been charged under Section CA No. 451/2019 Page 11 of 14 pages 474 IPC for having used a forged commercial Driving Licence. Section 474 IPC reads as under :
"474. Having possession of document described in section 466 or 467, knowing it to be forged and intending to use it as genuine.--1[Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code], be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 467, shall be punished with 2[imprisonment for life], or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine."
22. PW11 ASI Umesh, the Investigating Officer has deposed that he received the information about the accident vide DD No. 67B Ex.PW8/A. On receipt of the information he went to the spot but was informed that the injured was taken to the hospital. He went to the hospital but did not find any eye-witness. He prepared a rukka on the DD entry and he went back to the spot and served a notice under Section 133 MV Act Ex.PW11/B on the owner to which a response was given by the owner that it was the appellant who was driving the vehicle.
23. He has further deposed that the appellant was apprehended on the spot itself and his driving licence was seized vide memo Ex.PW1/C and the offending vehicle was seized vide Ex.PW11/D. The seized driving licence of the accused is Ex.P2. The perusal of the seizure memo shows that the number of the driving CA No. 451/2019 Page 12 of 14 pages licence was 6495/AG/06; date of issue is 18.04.2006 valid from 27.10.2007 to 26.10.2010. The driving licence has been seized on the spot and bears the signatures of the appellant himself. His claim that the driving licence was changed subsequently by the IO in connivance with the owner Sanjay Goel is falsified by the seizure memo of the driving licence itself.
24. It may further be noted that it is only in his defence evidence that the appellant had produced another driving licence Ex.DW3/A which is for a Light Motor Vehicle. This does not exonerate him from being in possession of a fake Driving Licence.
25. The prosecution had examined PW10 Hariom Morya, Junior Assistant in RTO Office who had deposed that as per record, DL No.6495/AG/06 had been issued to Irshad Ahmad R/o 11/59, Chillipura, Sahaganj, Agra and the copy of the record is Ex.PW10/A. It is established from the testimony of PW10 that the driving licence Ex.P2 was a fake driving licence.
26. It was argued on behalf of the appellant that the Supplementary Chargesheet was filed on the basis of the report given by the Insurance Company and no independent investigation in regard to the genuineness of the driving licence was carried out by the police. However, the testimony of PW10 nails the issue as it is proved beyond reasonable doubt that the appellant was in possession of a driving licence knowing it to be fake had intending to use the same as genuine. The learned MM has rightly CA No. 451/2019 Page 13 of 14 pages convicted the appellant under Section 474 IPC for having been found in possession of a fake driving licence.
27. The appellant may have been facing the trial since 2009 but it cannot be overlooked that the injured has suffered a permanent disability for which he was given a compensation of Rs.24 lacs from MACT. He was not willing to compound the offence with the appellant. It can also be not overlooked that appellant was driving a commercial vehicle without having a valid licence for commercial vehicle which is a risk to the general public. The learned MM has infact been lenient in sentencing the appellant under Section 279 IPC for four months; a fine of Rs.1,000/- under Section 338 IPC. The sentence of one year under Section 474 IPC cannot be considered excessive and there is no ground for interfering in the sentence.
28. In view of the above discussion, there is no infirmity or illegality in the impugned order of conviction and sentence. The appeal is without merit and is hereby dismissed.
29. A copy of this order along with trial court record be sent back to the learned trial court and appeal file be consigned to Digitally signed by NEENA record room. BANSAL NEENA BANSAL KRISHNA Date: 2021.10.08 Announced in the open court on KRISHNA 16:55:26 +1030 this 8th day of October, 2021 (NEENA BANSAL KRISHNA) Principal District & Sessions Judge South East, Saket Courts New Delhi CA No. 451/2019 Page 14 of 14 pages