Delhi District Court
State vs Sanjay on 31 October, 2019
FIR No. 329/2008
PS I.P.Estate
U/s 279/337/429 IPC
State Vs Sanjay
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE03, CENTRAL, DELHI
CIS No. 297515/2016
FIR No. 329/2008
PS I.P.Estate
U/s 279/337/429 IPC
State Vs Sanjay
Date of Institution of case : 12.06.2009
Date of Judgment : 31.10.2019
JUDGMENT:
a) Date of offence : 24.11.2008 b) Offence complained of : U/s 279/337/429 IPC c) Name of Accused, his : Sanjay parentage & residence S/o Sh. Mohar Singh R/o H.No. D5/272, Sangam Vihar, New Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Convicted u/s 279 & 337 IPC Acquitted u/s 429 IPC Page No. 1/13 FIR No. 329/2008 PS I.P.Estate U/s 279/337/429 IPC State Vs Sanjay BRIEF FACTS AND REASONS FOR DECISION: Case of the prosecution in brief is as follows:
1. On 24.11.2008, at about 1:30 p.m, at Ring Road, Near Gandhi Museum, Delhi within the jurisdiction of PS I.P.Estate the accused was driving vehicle bearing no. DL 1LF 9923 in a manner so rashly or negligently as to endanger human life and personal safety of others and while driving the said vehicle in aforesaid manner the accused hit it against one horse on which complainant Zamir Khan was riding, thereby causing simple injuries to him and also caused mischief by killing horse of the complainant. On the basis of aforesaid facts, the present FIR was registered for offence punishable under Section 279/337/429 IPC against the accused and after usual investigation chargesheet was filed.
2. The Court took cognizance of the abovesaid offence u/s 279/337/429 IPC and provisions of Section 207 Cr.P.C were complied. After hearing arguments, as a prime facie case was made out against the accused Sanjay for offence punishable u/s 279, 337 & 429 IPC, charge was accordingly framed against the accused to which he pleaded not guilty and claimed trail.
3. In order to prove the guilt of the accused u/s 279, 337 & 429 IPC, the prosecution has to prove the following essential ingredients of the said Sections: a. Section 279 IPC: The accused was driving the vehicle in a public place and that he was driving in a manner so rash or negligent as to endanger human life Page No. 2/13 FIR No. 329/2008 PS I.P.Estate U/s 279/337/429 IPC State Vs Sanjay or to be likely to cause hurt/injury to any other person.
b. Section 337 IPC : Hurt is caused to any person by an act done by another person and that the act was done so rashly or negligently as to endanger human life or personal safety of others.
c. Section 429 IPC : The accused with intent to cause or knowing that he is likely to cause wrongful loss or damage to public property or to any person, caused destruction of any property and such mischief was caused by killing, poisoning, maiming or rendering useless any elephant, camel, horse, mule, bull, cow or Ox and that the value of such animal was Rs. 50 or more.
4. To prove its case, prosecution examined nine witnesses in the present case.
5. PW1 Zameer Khan deposed that he does not remember the date, month and year of the accident as he is illiterate, that he was riding on a horse and coming from the Ashram Chowk to Shastri Park and when he reached Gandhi Museum Ring Road at around 1:30 p.m, one vehicle bearing registration no. DL 1LF 9923 came from the back side and hit against his horse due to which he fell down with the horse, that public persons took him from the road to the Footpath, that the accused present in the Court was driving the said vehicle stopped his vehicle, that some one called at 100 number and PCR officials took him to the LNJP Hospital where he got medical treatment and that police official recorded his statement Ex. PW1/A. PW1 Zameer Khan further deposed that later on he came to know that his horse was in the Animal Hospital, Tis Hazari and that his horse died after two days.
Page No. 3/13 FIR No. 329/2008PS I.P.Estate U/s 279/337/429 IPC State Vs Sanjay During cross examination conducted on behalf of accused, the witness deposed that he identifies the accused present in the Court who was driving the vehicle at the time of accident and that there was no light at the place of the accident. The witness denied the suggestion that riding of the horse was banned by the police on the road where accident took place, that he was going on wrong side at the place of accident due to which the accident took place, that accused was not driving the alleged vehicle in rash and negligent manner and that the accused has been falsely implicated in this case.
6. PW2 Dr. Pankaj Sharan proved the MLC of complainant Zamir Khan bearing no. 148003 dated 24.11.2008 Ex. PW2/A bearing his signature at point A in the present case.
This witness was not cross examined by or on behalf of accused despite opportunity.
7. PW3 Dr. Rahul Kaul, Specialist Indian Spinal Injuries Centre, Vasant Kunj proved the MLC No. 049728 Ex. PW3/A and X ray report no. 148003 dated 28.11.2008 according to which the complainant suffered simple injuries.
This witness was not cross examined by or on behalf of accused despite opportunity.
8. PW4 T.U.Siddique proved his detailed mechanical inspection report Ex. PW4/A bearing his signature at point A in the present case.
Page No. 4/13 FIR No. 329/2008PS I.P.Estate U/s 279/337/429 IPC State Vs Sanjay This witness was not cross examined by or on behalf of accused despite opportunity.
9. PW5 ASI Mahesh Tyagi proved the endorsement on the rukka Ex. PW5/A and the registration of FIR Ex. PW5/B in the present case.
This witness was not cross examined by or on behalf of accused despite opportunity.
10. PW6 Sh. Jai Prakash Shah deposed that he is the owner / superdar of the Van bearing registration no. DL 1LF 9923 in the present case and he proved the factum of receiving of copy of notice u/s 133 M.V.Act from the IO HC Anil which is Ex. PW6/A bearing his signature at point A. He further stated that accused Sanjay was driving the vehicle at the time of the accident.
This witness was not cross examined by or on behalf of accused despite opportunity.
11. PW7 ASI Rishi Kumar deposed that on 24.11.2008, he was posted as constable at police station I.P.Estate and was on emergency duty from 8:00 a.m to 8:00 p.m, that on that day IO HC Anil Kumar received DD No. 17 A and he alongwith him went to the spot i.e Ring Road, Raj Ghat, Red Light where they found one D Van bearing no. DL 1LF 9923 in accidental condition and one black horse in injured condition which was lying on the road, that IO sent the aforesaid black horse to animal hospital Tis Hazari and he was left at the spot, that after some Page No. 5/13 FIR No. 329/2008 PS I.P.Estate U/s 279/337/429 IPC State Vs Sanjay time, IO HC Anil Kumar came back at the spot and handed over Tehreer to him for registration of FIR, that he went to the PS and got the FIR registered, that thereafter, he came back at the spot alongwith original Tehreer and copy of FIR and handed over the same to the IO, that IO seized the aforesaid DVan in his presence vide seizure memo Ex. PW7/A, that on 01.12.2008 accused Sanjay's personal search was conducted and he was arrested by the IO vide memo Ex. PW7/B and Ex. PW 7/C & that IO seized the driving licence and R/C of the aforesaid vehicle vide memo Ex. PW7/D and Ex. PW7/E. The witness correctly identified his horse shown in the photographs Ex. P1 and P2 as well as offending vehicle in the photographs Ex. P3 (colly).
12. PW8 ASI Sudesh Kumar deposed that on 30.01.2009, he was posted at PS I.P.Estate as Head Constable and received a case file from MHC(R) and later on he filed the chargesheet.
This witness was not cross examined by or on behalf of accused despite opportunity.
13. PW9 ASI / IO Anil Kumar proved the various steps taken during the investigation of the present case being IO of the present case. PW9 deposed that he received DD No. 17 A regarding the accident upon which he alongwith Ct. Rishi Kumar went to the spot. PW9 proved the factum of preparation of rukka Ex. PW 9/A, site plan Ex. PW9/B, seizure memo already Ex. PW7/A, notice u/s 133 M.V.Act given to the register owner of deliver Van namely Jai Prakash Ex. PW Page No. 6/13 FIR No. 329/2008 PS I.P.Estate U/s 279/337/429 IPC State Vs Sanjay 9/C, arrest memo already Ex. PW7/C, personal search memo already Ex. PW7/B, driving licence of accused Ex. PW7/D and mechanical inspection report Ex. PW 4/A. This witness was not cross examined by or on behalf of accused despite opportunity.
14. Thereafter, Prosecution Evidence was closed as all the material witnesses were examined and statement of the accused u/s 281 read with Section 313 read with Section 281 Cr.P.C was recorded wherein all the incriminating circumstances appearing in evidence were put to the accused who stated that he did not commit any offence and he has been falsely implicated in the present case. The accused chose not to lead defence evidence.
15. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that did not commit any offence and he has been falsely implicated in the present case. It is further submitted that prosecution miserably failed to prove its case against the accused beyond reasonable doubts as no reliable witness has been able to prove rashness or negligence of the accused which is necessary element for completion of offence punishable u/s 279 /337/429 IPC.
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16. This Court heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and perused the record of the case.
17. Perusal of the testimonies of the prosecution witnesses, statement of accused and the record shows that the case of the prosecution is that accused was driving the Van in a rash and negligent manner on a public way and hit the said vehicle against one Tonga and caused simple injuries to complainant namely Jamir Khan and caused mischief by causing death of horse of the complainant whereas the defence version is that the accused did not commit any offence, that riding of the horse was banned by the police on the road where accident took place, that complainant / injured was going on wrong side at the place of accident due to which the accident took place, that accused was not driving the alleged vehicle in rash and negligent manner & that he has been falsely implicated in the present case.
18. In order to prove the aforesaid allegations for the offence punishable u/s 279, 337 and 429 IPC prosecution had to prove that the accused was driving the offend ing vehicle, that the said vehicle was driven in a rash & negligent manner on a pub lic way, that the accused caused the accident due to rash & negligent driving, that the victim sustained injuries in the accident caused due to the rash / negligent driv ing of the accused and that act of the accused caused mischief by killing the horse of the victim worth Rs. 50 or more.
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19. Perusal of testimony of PW1 who deposed that he does not remember the date, month and year of the accident as he is illiterate, that he was riding on a horse and coming from the Ashram Chowk to Shastri Park and when he reached Gandhi Museum Ring Road at around 1:30 p.m, one vehicle bearing registration no. DL 1LR 9923 came from the back side and hit against his horse due to which he fell down with the horse, that public persons took him from the road to the Footpath, that the accused present in the Court was driving the said vehicle, stopped his vehi cle, that some one called at 100 number and PCR officials took him to the LNJP Hospital where he got medical treatment, that police official recorded his statement Ex. PW1/A, that later on he came to know that his horse was in the Animal Hospi tal, Tis Hazari and that his horse died after two days.
20. In the cross examination, PW1 correctly identified the accused present in the Court as the person who was driving the vehicle at the time of accident. The witness denied the suggestion that riding of the horse was banned by the police on the road where accident took place, that complainant / injured was going on wrong side at the place of accident due to which the accident took place, that accused was not driving the alleged vehicle in rash and negligent manner and that the accused has been falsely implicated in this case.
The aforestated firm testimony of PW1 establishes that the identity of the accused as driver of the offending vehicle and the fact that vehicle was driven on a public way i.e Ring Road has been proved. It is further evident that identity of the Page No. 9/13 FIR No. 329/2008 PS I.P.Estate U/s 279/337/429 IPC State Vs Sanjay offending vehicle has also been firmly established. It is further clear from the testi mony of Superdar / PW6 that he had affirmed the aforesaid version of PW1 regarding the identity of the accused being a driver of the offending vehicle as well as identity of the offending vehicle by deposing that the accused was driving the vehicle at the time of accident.
21. Testimony of PW1 further shows that D Van / offending vehicle had hit the victim and his horse from back side which itself speaks volume about the rashness / negligence of the accused as hitting from behind perse amounts to presence of rash ness / negligence.
The firms denials made made by PW1 regarding the fact that riding of the horse was banned by the police on the road where accident took place, that com plainant / injured was going on wrong side at the place of accident due to which the accident took place and that accused was not driving the alleged vehicle in rash and negligent manner shows that accused failed to extract any material in support of his version despite cross examination. Record shows that accused did not lead any posi tive evidence to show presence of contributory negligence on the part of victim by proving the horse riding is banned on road or by riding on wrong side of the road which being a material omission indicates that there is no substance in defence ver sion.
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22. It is further substantiated from unrebutted the testimony of PW4 T.U.Sid dique, Motor Vehicle Inspector who proved the mechanical inspection report Ex. PW4/A that the vehicle of the accused was found having broken front glass and body dented / damaged. It is pertinent to observe that no explanation has been given on behalf of accused regarding the presence of the aforesaid huge damage which further substantiates that the said damage was caused due to the involvement of the D Van in the alleged accident and that the DVan was being driven rashly and negli gently.
23. The aforesaid firm and consistent testimonies of PW1 and other witnesses well as omissions made by defence establish the element of rashness and negligence as the accused indulged in an over hasty act by driving his D Van without taking care of probable danger to the public persons present on the road at that time which is expected to be observed while driving on a public way and the act of the accused in hitting the complainant / injured who was present on the spot as depicted in the unrebutted site plan Ex. PW9/B, speaks volumes about the absence of due care and caution which is expected to be observed by a reasonable and prudent man qua the safety of the pedestrians while driving a vehicle on a public way. It can thus be said that rashness of the accused was of such a degree as to amount to taking a hazard knowing that hazard was of such a degree that injury was most likely eminent and that there was gross negligence on the part of the accused and not the negligence merely based upon an error of judgment.
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24. It is also clear from the unrebutted testimonies of medical witnesses PW2 and PW3 and other witnesses that the injuries on the body of the horse and victim were caused in the aforesaid accident which had taken place due to the rash and negligent act of the accused. In view of aforesaid observations and clinching testi monies, the defence version that the riding of the horse was banned by the police on the road where accident took place, that complainant / injured was going on wrong side at the place of accident due to which the accident took place and that accused was not driving the alleged vehicle in rash and negligent manner is of no conse quence.
25. The unrebutted testimony of PW1 that his horse sustained injuries in the al leged accident and died after two days establishes that his horse (animal) was killed due to the accident caused by the rash and negligent driving of the accused. It is a matter of common knowledge that the worth of a living horse is more than Rs. 50/ so, judicial notice of the said common fact is being taken by this Court.
But, the provision of Section 429 IPC would be attracted only when there is a deliberate attempt to kill or maim the animals referred to in this Section. An acci dental maiming of any animal would not attract the provisions of this Section. In view of the discussion made in forgoing paragraphs, it is established that the acci dent was caused due to rashness / negligence of the accused which rules out the presence of necessary mens rea required for fastening criminal liability for offence Page No. 12/13 FIR No. 329/2008 PS I.P.Estate U/s 279/337/429 IPC State Vs Sanjay punishable u/s 429 IPC. Thus, the accused can not be burdened with criminal liabil ity for offence punishable u/s 429 IPC.
26. In the view of the above discussion, court is of the opinion that the prosecu tion has clearly established beyond reasonable doubt that the Accused Sanjay was driving D Van bearing No. DL 1LF 9923 in a rash and negligent manner on public way so as to endanger human life and personal safety of others and while driving the said vehicle in aforesaid manner the accused hit it against one horse on which complainant Zamir Khan was riding thereby causing simple injuries to him and con sequently he is liable for the offences U/s 279 & 337 IPC.
27. In these facts and circumstances, the prosecution has been able to prove its case beyond reasonable doubt. This Court, therefore, holds the accused Sanjay S/o Sh. Mohar Singh guilty of offences punishable under section 279 & 337 and he is accordingly convicted for the same while the accused Sanjay S/o Sh. Mohar Singh is acquitted for the offence punishable u/s 429 IPC.
28. Let the convict be heard on the point of sentence.
VIPLAV Digitally signed by
VIPLAV DABAS
Date: 2019.11.04
DABAS 16:56:44 +0530
Announced in the Open Court (VIPLAV DABAS)
on 31.10.2019 MM03/CENTRAL:DELHI
31.10.2019
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