Delhi District Court
State vs . Saksham Goel on 19 September, 2019
IN THE COURT OF SH. DEEPAK KUMAR II, METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI.
FIR No. 557/18
PS. Dwarka North.
U/s.279/338 IPC
State Vs. Saksham Goel
JUDGMENT
A. SL. NO. OF THE CASE : 421501/16.
B. DATE OF INSTITUTION : 13/07/2015.
C. DATE OF OFFENCE : 16/07/2014.
D. NAME OF THE : Ram Prasad Ojha S/o
COMPLAINANT Sh. Ram Padharath Ojha
E. NAME OF THE : Saksham Goel S/o Sh.
ACCUSED Rakesh Goel R/o House
No. 5/191, Sunder Vihar,
New Delhi110087.
F. OFFENCE
COMPLAINED OF : U/s 279/338 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal
I. DATE OF SUCH ORDER : 19.09.2019.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution in the chargesheet are that on 16.07.2014 at about FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 1/14 8.30 PM at road no. 201, near PNB Apartment, Sector 4, Dwarka, New Delhi within the jurisdiction of PS Dwarka North the accused Saksham Goel was found driving his offending vehicle i.e. a white colour swift car bearing registration no. DL2CAH1405 in a rash and negligent manner so as to endanger the human life and personal safety of others and while driving his vehicle in abovesaid manner, he hit the complainant Ram Prasad Ojha due to which he sustained grievous injuries. On the basis of DD No. 22A dated 16.07.2014 IO/HC Rakesh Kumar along with constable Dharmendra reached the Ayushman hospital where they could not find the complainant. On inquiry they came to know that the accused has been shifted to Rockland Hospital, Dwarka. At Rockland hospital the son of the complainant told them that accused driver namely Saksham wanted to settle the matter, which ultimately could not be settled. The medical examination of the complainant was conducted at the Ayushman Hospital vide vide MLC no. 3426/14 in which the doctor had opined that injury were simple. On the basis DD No. 22A an FIR No. 557/14 under section 279/337 IPC was registered at PS Dwarka North. During investigation the statement of witness were recorded, site plan was prepared, offending vehicle was seized, accused was arrested, vehicle was got mechanically inspected, and other steps were taken towards investigation. On the conclusion of investigation, challan of 279/337 IPC was filed against the FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 2/14 accused in the court.
2. Thereafter, the accused was summoned by the learned predecessor of this court for facing trial under the aforesaid sections. In compliance of Section 207 CrPC, the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge under section 279/337 IPC was made out against the accused and accordingly, on 26/10/2015 the notice was framed against him by this court. The Ld. Predecessor of this court had altered the notice and charge altered under section 279/338 IPC was framed against the accused to which he pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for recording of prosecution evidence.
3. In the instant case, the prosecution has examined five witnesses in support of its case.
4. PW1/complainant R P Ojha deposed that on 16.07.2014 at about 8.30 PM he was going for a morning walk alongwith his son; he further deposed that his son used to help him in crossing the road; on the day of incident his son was standing on the footpath when he started to cross the road; that he was hit by a white swift car bearing registration number 1405 FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 3/14 in a rash and negligent manner due to which he sustained injuries; accused Shaksam Goel accompanied him to the hospital; he remained in hospital for about a month; his complaint is Ex.PW1/A; he did not gave any complaint to police; his son might have given it; he correctly identified the accused.
5. In his cross examination he deposed that his supplementary statements are Ex.DX and Ex.DX1; his son used to help him while crossing the road; on the day of incident his son was standing on footpath while he was crossing the road all alone; accused had helped him in taking to the hospital and admitting there and his son also helped the accused; the signature on Ex. PW1/A and DX2 are different; he remained in hospital for ten days.
6. PW2 Sanjay K. Ojha deposed that on 16.07.2014 his father came at the park of Sector4 for morning walk and he joined him there; he alongwith his father reached the road no. 201 also known Dwarka Najafgarh Road; there was no vehicle coming from Rajapuri Road he advised his father to cross the road and he remained standing there; suddenly, a white swift car came at a very high speed bearing registration no. DL2CAH1405 and hit his father; accused tried to apply brakes but failed in the same; accused tried to escape from the spot but he was apprehended FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 4/14 by some persons; on his pressurizing the accused, he then took the injured to the hospital; he also accompanied his father to the hospital; he made a phone call to his family from the phone of accused at the time of accident; car was bearing registration no. DL2CAE1405 but accused had provided wrong details of car as at the time of accident the car was bearing registration no. DL 2CAH1405; his request letter is Ex.PW2/A.
7. In his cross examination by Ld. Defence counsel he deposed that on the MLC of the injured, the name of the accused is mentioned as the person who brought the injured; while his father was crossing the road, so many vehicles were passing by and some people were present there; but at the time of collision no vehicle other than the offending vehicle was present on the spot; there was zebra crossing at the spot; he also deposed at the time of accident he was not carrying his mobile phone.
8. PW3 Sh. Puran Chand, Mechanical Examiner deposed that he conducted mechanical inspection of the Maruti Swift car bearing registration no. DL2CAH1405 at the request of IO and accordingly prepared report as Ex.PW3/A. In his cross examination he deposed that he does not remember the time of conducting mechanical inspection and that there was delay in mechanical inspection from the date of the FIR; he further FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 5/14 deposed that there were minor scratches on the car; he further deposed that he cannot say much about the marks shown in the photographs having number 40.
9. PW4 Ct. Dharmedner deposed that on 09.09.02014 accused came in the police station where IO arrested accused Saksham Goel vide arrest memo Ex.PW4/A; he further deposed that IO had seized the offending vehicle vide seizure memo Ex.PW4/B; DL, RC and insurance of the offending vehicle was seized vide memo Ex.PW4/C; three photographs of the offending vehicle were correctly identified by him as Ex.P4/1 to Ex.PW4/3. In his cross examination he deposed that he cannot say as to when the abovesaid photographs were taken.
10. PW5 HC Rakesh Kumar deposed that on 16.07.2014 he received DD No. 22A and he alongwith Ct. Dharmender reached Ayushman Hospital; complainant R.P. Ojha was not present in the hospital and had been admitted in the Rockland Hospital; that in the hospital son the complainant namely Sanjay Ojha gave him an application regarding the settlement with the accused; this letter is Ex.PW2/A; later on he prepared DD No. 68B while DD No. 22A was kept pending; he prepared rukka on the basis of complaint which is Ex.PW5/A; he alongwith the complainant went to the spot and prepared a site plan which is FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 6/14 Ex.PW5/B; he served notice u/s 133 of the M.V Act to the owner of the offending vehicle namely Saksham Goel; this notice is Ex.PW5/C; accused Saksham Goel was arrested on 09.09.2014; arrest memo is already Ex.PW4/A; he seized the offending vehicle vide seizure memo already Ex.PW4/B; he seized DL, RC and insurance of the offending vehicle vide memo already Ex.PW4/C; on 12.09.2014 he conducted mechanical inspection of the offending vehicle and collected the report of mechanical inspector which is already Ex.PW3/A; he also collected the result on the MLC of the injured; he prepared chargesheet and filed the same before the court.
11. In his cross examination he deposed that FIR was registered after the delay of approximately 45 days; he further deposed that registration number of the offending vehicle is mentioned in the Ex.PW2/A is DL2CAE1405; he did not visited the spot on the date of the incident as the son of the complainant met him in Rockland hospital and gave him a request letter which is already Ex.PW2/A; after 45 days on the date of the incident son of the complainant gave him an application for furnishing the correct registration number of the offending vehicle; during this period of 45 days he did not make any investigation with regard to vehicle number since the son of the complainant informed him that negotiations for settlement were going on with the accused.
FIR No. 557/1PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 7/14
12. PW6 Dr. Shailendra Jain was examined on 16.12.2017, he deposed that he was working as a consultant surgeon at Ayushman Hospital; he prepared MLC no. 3426/14 dated 16.07.2014 in which he stated that the patient was having injury over right knee and right hip at the time of examination; he was of the opinion that the injury was simple one. Thereafter an application was moved under section 311 CrPC for recalling of PW6 which was allowed and he deposed that IO came to him for his opinion in April 2017; on the basis of discharge summary of Rockland hospital which was shown to him on which he opined that injury was grievous in nature. In his cross examination he deposed that patient was shifted to Rockland hospital against his advice (LAMA) (left against medical advice); the injuries as mentioned above were not observed by him and the time of examination of injured and injuries could have been sustained when the patient was being shifted from Ayushman hospital to Rockland hospital.
13. Accused in his statements recorded on 06.12.2017 under section 294 Cr.P.C admitted the genuineness of DD No. 22A dated 16.07.2014, FIR No. 557/14, PS Dwarka North, dated 23.08.2014, certificate under section 65B of the Indian Evidence Act as Ex.P1, Ex.P2 and Ex.P3 respectively.
FIR No. 557/1PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 8/14
14. After examination of all the PWs, PE was closed and statement of the accused under section 313 CrPC read with 281 CrPC was recorded on 05.07.2019. In the said statement all the incriminating evidence against the accused were put to him for his explanation. He stated that he is innocent and has been falsely implicated. He further stated that he shifted the injured to the hospital on humanitarian grounds and accident had not taken place with his vehicle. He further stated that injured gave the mobile number of his son and he made a call to him and told about the accident. He further stated that he wants to lead defence evidence.
15. In his defence accused had examined Ct Dharmender as DW1. DW1 Ct. Dharmender deposed he had brought the summoned record i.e. DD No. 32B dated 18.07.2014 and same is Ex.DW1/A (OSR); complaint register which was referred in DD No. 32B had been destroyed vide order no. 15021 80/HAR/DWD dated 29.11.2018 and the said order is marked as Mark X. In his cross examination nothing incriminating has come on record. Thereafter DE was closed. Subsequently, the case was listed for final arguments and the same were addressed by respective Ld. Counsels for the parties.
FIR No. 557/1PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 9/14
16. I have heard Ld. APP for the state and Ld. counsel for the accused. I have carefully perused the case file.
17. Cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
18. In order to prove the guilt of the accused the prosecution is required to prove the following ingredients as mentioned U/s 279/338 IPC:
(i) The accused was driving his offending vehicle on a public way;
(ii) He was driving the same in rash or negligent manner;
(iii) The said act/driving has endangered human life or personal safety of others; and
(iv) He caused grievous injuries to a person due to the aforesaid rash or negligent act/driving.
19. Complainant/ injured is vital witness for proving the prosecution version as the entire case of the prosecution is based upon the foundation laid down by the statement given by the complainant/injured R.P Ojha to the police. In the present case it has come on record that normally complainant and his son used to go for a morning walk together and his son/PW2 used to help FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 10/14 him in crossing the road but on the day of incident his son remained standing at the footpath while the aged complainant alone was crossing the road. It seems quit improbable that his son/PW2 would stand on the footpath and the same time would watch his aged father crossing the road. According to the testimony of the complainant he could not ascertain the speed of car but according to the son/PW2 the car was being driven at a very high speed. In his cross examination PW2/son gave a self contradictory statement that at the time of accident so many vehicle were passing through and some people were also present at the spot but at the time of accident he stated that no vehicle other than the offending vehicle was present at the spot of accident. It is pertinent to note here that at the time of accident some people were present at the spot but no phone call had been made by anyone on 100 number to the police even though the alleged nature of injuries were grievous.
20. It is further relevant to note that in MLC the name of the person who had brought the complainant to the hospital was mentioned that of accused. This raises the doubt in the mind of court as to why name of the son/PW2 was not there in MLC as the person who brought the injured to the hospital; though son/PW2 contends that he alongwith the accused admitted the complainant in Ayushman Hospital. It is further note worthy to FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 11/14 mention that the phone calls to the family member of the complainant were made by phone of the accused.
21. The testimony of the PW6 is of utmost importance as he opined the nature of the injury as simple on the basis of MLC No. 3426/14 dated 17.07.2014. Later in the month of April 2017, on the basis of observation regarding the discharge summary of Rockland hospital PW6 gave his opinion that injuries were grievous in nature and the complainant was shifted against his medical advice and he further deposed that the injuries in question might have been sustained when the PW1/injured was being shifted from Ayushman Hospital to Rockland hospital.
22. In the present case FIR was lodged after 45 days of the accident. It is settled law that if there has been delay in registration of FIR and the same is required to be sufficiently explained so that it is not fatal to the case of prosecution but coming to the facts of the case in hand no plausible explanation for delay has come on record.
23. Even, if for the sake of arguments, it is assumed to have been established that the injured sustained injuries in an accident committed by the accused, in that case also it cannot be inferred that the accused was driving his vehicle in a rash or FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 12/14 negligent manner, unless the said mens rea i.e. guilty intention is proved by the prosecution beyond any reasonable doubt. The accused cannot be convicted on presumptions or surmises, rather, all the ingredients including rash or negligent act as mentioned under section 279/338 IPC are required to be established. Though the registration number of the car mentioned in FIR is DL2CAE1405 whereas the same is DL2CAH1405. This anomaly also has been insufficiently explained by prosecution.
24. The findings given by Hon'ble Apex Court in case titled as B.C. Ramachandra Vs. State of Karanataka, 2007 Cri. L.J 475. are relevant and reproduced as under:
"In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. The said ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur"
25. There is not even an iota of incriminating evidence against the accused to fix his liability under section 279/338 IPC by leading convincing and cogent evidence and thus the investigating agency have failed to discharge the onus placed upon it. There are plethora of inconsistencies in the statement of the PWs and furthermore, the false implication of the accused also cannot be ruled out. Hence, the accused is entitled to FIR No. 557/1 PS. Dwarka North U/s.279/338 IPC State Vs. Saksham Goel Page No. 13/14 benefit of doubt.
26. In the light of the above discussion, the accused Saksham Goel is acquitted for the offences under section 279/338 IPC. Bail bonds are canceled and sureties be discharged. Original documents, if any, be returned to the persons legally entitled, after canceling the endorsement, if any, on the said documents.
File be consigned to Record Room after due compliance.
Digitally signed by DEEPAK DEEPAK KUMAR
KUMAR Date: 2019.09.19
16:50:17 +0530
ANNOUNCED IN OPEN COURT (DEEPAK KUMARII)
TODAY i.e. on 19.09.2019 MM06/DWK/ND
FIR No. 557/1
PS. Dwarka North
U/s.279/338 IPC
State Vs. Saksham Goel Page No. 14/14