Delhi District Court
State vs Rahul on 20 July, 2024
IN THE COURT OF SH. AKSHAY SHARMA, JUDICIAL
MAGISTRATE FIRST CLASS-02, SOUTH EAST, SAKET
COURTS, DELHI.
FIR NO. 305/2017
PS. OKHLA INDUSTRIAL AREA
U/s. 279/338 IPC
STATE VS RAHUL
JUDGMENT
A. SL. NO. OF THE CASE : 496/2/17
B. DATE OF INSTITUTION : 07/12/2017
C. NAME OF THE : Manoj Kumar
COMPLAINANT S/o Sh. Ram Nivas
D. NAME OF THE : Rahul
ACCUSED S/o Sh. Ram Lal
E. OFFENCE COMPLAINED
OF : U/s 279/338 IPC
F. DATE OF COMMISSION
OF OFFENCE : 02.08.2017
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Convicted
I. DATE OF RESERVING
ORDER : 09.07.2024
J. DATE OF SUCH ORDER : 20.07.2024
BRIEF FACTS
1. Briefly stated facts of the instant case as per the charge-sheet are that on 02.08.2017 after receipt of DD no.37A regarding an accident, HC Satish along with Ct. Nabtej reached the spot Maa Anandmai Marg, Service Road in front of NBCC building, OIA-I, where they met complainant Manoj Kumar, who produced the accused driver Rahul s/o Ram Lal and gave a statement, in which he stated that on 02.08.2017, at around 05:50PM, when he was returning from his office along with his friend Kuldeep on a motorcycle and going to Dakshinpuri. Then at around 06:00PM when he crossed crown plaza hotel and reached in front of NBCC building, he saw that one person who was walking on service Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date: 2024.07.20 16:23:14 +0530 :2: road and was coming towards the petrol pump. A crane driver was coming at a fast speed, as he moved a bit ahead, he realized that the said crane driver had hit the pedestrian walking on the footpath and the pedestrian had fell on the road. At that time, he raised noise and tried to get the crane stopped, however, the crane driver did not stopp and had ran over the said pedestrian. He along with 02-03 boys assisted the injured and sent him to a hospital in an auto. At the spot itself, he also caught hold of the crane driver, whose name was revealed as Rahul s/o Ramlal. In the meanwhile, DD no.39A regarding MLC was received from hospital, upon which Ct. Nabtej was left at the spot and HC Satish went to ESI hospital and obtained MLC no.361/17 of the injured Ashok Singh. Crush injuries on leg and foot was mentioned in the MLC and the patient was referred to Safdarjung hospital for further management. Thereafter, HC Satish returned to the spot, prepared the Tehrir and sent Ct. Nabtej for registration of FIR. Efforts was made to find any CCTV footage, however, no camera covering the spot of accident was found. The offending vehicle which is crane no. UP17T9379 was seized. The accused was arrested, however released on bail as the offence was bailable. Mechanical inspection of the offending vehicle/ crane was got conducted. The result of the MLC was obtained which was stated to be grievous in nature. Statement of the witnesses were recorded and thereafter, the present charge-sheet for judicial verdict was filed in the court.
NOTICE
2. Cognizance was taken in the instant case and compliance of Section 207 CrPC was done. Thereafter, after hearing the arguments on Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date: 2024.07.20 16:23:34 +0530 :3: notice separate charge u/s 279/338 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, case was put for prosecution evidence and the following prosecution witnesses were examined:
3.1. PW-1 Sh. Manoj Kumar was examined, he in his examination in chief deposed that on 02.08.2017 at about 6.00 pm after completion of work he along with his friend namely Kuldeep were going to home at Dakshinpuri on motorcycle no. DL3SDP5479. When they reached in front of NBCC Building, Crown Plaza Hotel, Maa Anandmayee Marg they saw the driver of crane was driving in the service road and hit the injured who was walking parallel to the said crane on the footpath, immediately stepped in front of the said crane because of which the crane ran over the left leg of the injured. Thereafter some public persons were also gathered there and one of them had made a call at 100 number. Thereafter police officers and ambulance were reached at the spot and shifted the injured to hospital. Police recorded his statement which is Ex. PW1/A bearing his signature at point 'A'. Thereafter he went back his home. After some days, police officer called him for obtaining signatures on some documents. Accused was present in the court that day and was correctly identified by the witness. PW1 further submitted that he can identify the offending vehicle, if shown to him.
At that stage, witness had been shown seven photographs of offending vehicle bearing no. UP17P9379 and blood stains at the spot. Witness correctly identifies the same. These photographs are exhibited as Digitally signed AKSHAY by AKSHAY SHARMA SHARMA Date: 2024.07.20 16:23:43 +0530 :4: Ex.P1 to P7.
PW1 further submitted that the IO obtained his signatures on arrest memo, personal search memo, seizure memo of offending vehicle, DL of accused and documents of crane after 15-20 days of incident which is now Ex. PW1/B to PW1/F bearing his signature at point 'A'.
At that stage, Ld. APP for the state sought permission from the court to cross examine the said witness as he was resiling from his previous statement recorded u/s 161 Cr.P.C, which was heard and allowed.
In the cross-examination by Ld. APP for the State., PW submitted that it is correct that offending vehicle was coming on the wrong side of service road. It is wrong to suggest that the injured stepped down on the road in order to cross the same. It is wrong to suggest that the documents were got signed by me by the IO on the same day.
3.2. PW-2 Sh. Ashok was examined, he in his examination in chief deposed that on 02.08.2017 he was going to market on foot from his house. On that day at about 6.00 pm when he reached near Petrol Pump, Crown Plaza Hotel, Maa Anandmayee Marg. He was walking on footpath and thereafter when he was crossing the service road, one crane came and hit me from the back side. The crane ran over his left leg. Thereafter he raised noise and public gathered at the spot and public person took him to ESI Hospital. Thereafter he was transferred to Safdarjung Hospital from ESI Hospital. Somebody from the public called the police. Police officials came at Safdarjung Hospital. It is correct that his leg was imputed due to the said accident. Witness correctly identified the accused person.
Digitally signed byAKSHAY AKSHAY SHARMA SHARMA Date: 2024.07.20 16:23:53 +0530 :5: At that stage, 7 photographs of offending vehicle bearing no. UP17T9379 and blood stains at the spot are shown to witness. Witness correctly identified the same. The same is already Ex. P1 to P7.
At that stage, Ld. APP for the State sought permission to ask the leading question from the witness, which was Heard and Allowed.
In answer to the leading questions, PW submitted that he does not recall as to whether the number of offending vehicle was UP17T9379. It is correct that horn was not blown by the accused. It is correct that accident took place as the vehicle was being driven by the accused in rash and negligent manner.
3.3. PW-3 Sh. Vipin Singh, was examined, he in his examination in chief deposed that he was working as a security guard at Company No. D-194, OIA Phase-1. On 02.08.2017 he was on duty at about 6.15 pm 2-3 public persons alongwith my injured brother namely Ashok Singh reached at abovesaid company in an auto and I saw that my brother sustained injury in his leg. Thereafter they took him to ESI Hospital in the said auto. After first aid his brother was referred to Safdarjung Hospital. His brother stated me that incident took place by the negligence of driver of offending vehicle i.e. Crane bearing no. UP17T9379.
3.4. PW-04 Sh. Subham Garg was examined, he in his examination in chief deposed that he was returning from his office. He does not remember the exact date. It was evening time, he saw an accident and some people had gathered there. At the spot, he saw a person was lying injured and he called 100 number and intimated that accident has taken place and some people have gathered. At the spot, there was lot Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date: 2024.07.20 16:24:04 +0530 :6: of blood and he felt scared and he left the spot thereafter immediately.
3.5. PW5- Sh. Kuldeep was examined, he in his examination in chief deposed that on 02.08.2018 he was returning from his office along with his colleague Manoj, at about 06:00 PM they saw a crane had run over leg of an aged person aged about 55 years. Thereafter, the crane driver tried to leave the spot but he and his colleague apprehended him. A lot of people had gathered at the spot and one of them had called the police. PW5 further submitted that they had sent the injured along with his brother to the ESI hospital in an auto. Thereafter, the police arrived at the spot and they went along with the accused to the police station. Since, the incident is nearly 5 years old he does not remember the face of the accused. Police officials recorded statement of both he and his colleague and they were sent home.
3.6. PW6- Sh. Rahul Chaudhary was examined, he in his examination in chief deposed that on he is the registered owner of crane bearing no. UP17T9379. On the date of the alleged incident, his driver Rahul, who was present in the court that day and was correctly identified by the witness was driving the said vehicle. That day he had seen his reply to the notice u/s 133 MV Act dated 02.08.2017. The said reply was exhibited as Ex.PW6/A, bearing his signature at point 'A'. He had produce the accused in PS-OIA. He handed over the document of uhis vehicle to the police vide already Ex.PW1/F, bearing his signatures at point A. He got released his vehicle on superdari vide panchnama dated 09.08.2017 vide Ex. PW6/B, bearing his signatures at point 'A'.
That day, he has not brought the said vehicle.
Digitally signedAKSHAY by AKSHAY SHARMA SHARMA Date: 2024.07.20 16:24:15 +0530 :7:
At that stage, photographs of the offending vehicle bearing no. UP17T9379 are shown to the witness and he correctly identified the vehicle in the said photographs. The said photographs are already Ex.P1- Ex.P7.
3.7. PW7- ASI Satish Kmar, was examined, he in his examination in chief deposed that on 02.08.2017 he was posted as HC at PS OIA. On that day at around 06:10PM DD NO.37A was marked to him regarding present accident. Thereafter, he along with ct. Nabtej went to the spot i.e., service road Maa Anandmai Marg, OIA-I and met the complainant namely, Maonj Kumar. Complainant handed over custody of accused driver namely Rahul was present in the court that day and was correctly identified by the witness, of offending crane no.UP17T9379 to him. Thereafter, the complainant got his statement recorded. The offending crane was also present at the spot. In the meanwhile, he received information regarding MLC of injured vide DD no.39A and he left the accused in the custody of Ct. Nabtej at the spot and he went to ESI hospital, Okhla. He obtained the MLC of injured Ashok Singh who was already referred to Safdarjung Hospital for further treatment. No eye witness was found present in ESI Hospital and he returned back to the spot. PW 7 furhter submitted that he prepared rukka which was now Ex.PW7/A and got the FIR registered through Ct. Nabtej. He prepared the site plan at the instance of the complainant which was now Ex.PW7/B. Thereafter he seized the offending crane vide seizure memo already Ex.PW1/D. He interrogated the accused and after interrogation he arrested the accused vide arrest memo already Ex.PW1/B. Thereafter, he Digitally signed AKSHAY by AKSHAY SHARMA SHARMA Date: 2024.07.20 16:24:30 +0530 :8: called the owner of the offending vehicle namely, Rahul Choudhary at the spot and he was served upon notice u/s 133 MV Act which was already ExPW6/A. The registered owner duly replied the notice and verified the details of his driver namely, Rahul i.e., the accused. Accused produced his driving license and documents of the offending crane which were seized by him vide seizure memo already Ex.PW1/E and PW1/F. Thereafter, accused were released on police bail as per law and he got shifted the case property to Malkhana, PS OIA. Thereafter, he visited Safdarjung Hospital but the injured was declared unfit for statement.
On 03.08.2017 he got conducted the mechanical inspection of the offending crane and collected MVI report. On 09.08.2017 the offending crane was released on Superdari and he prepared its panchnama. At this stage, witness has shown 07 photographs of offending crane form the Judicial file to which the witness correctly identified and witness stated that the photographs were taken from the spot itself. The photographs are already Ex.P1-P7.
PW7 further submitted that duing investigation doctor's opinion on the MLC of inured and the nature of the injury was opined as grievous. The victim/ injured had lost his left leg due to the injury sustained in the incident. During investigation, he recorded the statement of the witnesses and after completion of investigation he prepared the charge-sheet.
STATEMENT OF ACCUSED
4. After the examination of the material prosecution witnesses, Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date: 2024.07.20 16:25:09 +0530 :9: prosecution evidence was closed and statement of the accused u/s 281 CrPC r/w Section 313 CrPC was recorded wherein accused stated that the accident did not take place due to his fault, the injured was talking of the call and he came in front of the crane from the conductor side. He applied breaks immediately. However, the injured sustained minor scratches. However, accused preferred not to lead any defence evidence.
DISCUSSION OF LAW, EVIDENCE AND DECISION THERE ON.
5. The question to be decided in the instant case is that whether the prosecution has been able to prove beyond reasonable doubt the essential ingredients of the offences with which the accused has been charged, i.e. Section 279,338 Indian Penal Code 1860. For proving the offence under Section 279 read with Section 338 IPC, the prosecution must establish that :
1.) The accused was driving the vehicle in a rash or negligent manner on a public way as to endanger human life or to cause injury or hurt to any person.
2.) Due to such driving, the accused caused grievous injuries to the injured Ashok.
6. The Hon'ble Apex Court in the Judgment titled as Mohd. Aynuddin Miyam vs. State of A.P . [(2000)7 SCC 72] held that:
"9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2024.07.20 16:25:17 +0530 :10: risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
7. Coming now to the facts of the case at hand, the culpability of the Accused shall be decided on the basis of the parameters mentioned in the above-mentioned respective judgment. The court will have to find answers to certain questions which bring forth the truth of the matter i.e. whether the Accused was driving the offending vehicle at the time of the commission of alleged offences, whether the Accused was rash and negligent in his conduct and whether due to the rash and negligent conduct of the Accused injuries were caused to injured Ashok. Each of the said issues will be discussed separately in the following paragraphs.
1) Whether the accused was driving the vehicle at the time of commission of the alleged offence?
8. At the outset it is stated that from the material available on record, it can be reasonably concluded that the accused was driving the offending vehicle at the relevant time of accident and the identity of the accused is established beyond reasonable doubt by virtue of the reply to the notice u/s 133 MV Act of the registered owner which is Ex.PW6/A. The registered owner Rahul Chaudhary has also graced the witness box, Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date: 2024.07.20 16:25:29 +0530 :11: correctly identified the accused and has stated that the accused was driving the offending vehicle at the time of the alleged incident. Further, the eye witness, PW1 Manoj Kumar and PW2/ Injured Ashok has also correctly identified the accused in the court. Moreover, in the statement of the accused, the accused has nowhere denied that he was not driving the offending vehicle at the relevant time. Hence, the only consideration for adjudicating the culpability of the accused which remains is that whether the accused was rash or negligent in his driving and due to such driving, grievous injuries were caused to the injured.
2.) Whether due to rash and negligent driving, the accused caused grievous injuries to the injured Ashok.
9. The factum of injuries is not in dispute as the accused has admitted the MLC as well as the discharge summery and the supporting medical documents of the injured in his statement u/s 294 CrPC as Ex.P/A/5 and Ex.P/A/6 (running into 06 pages) respectively. It is a settled principle of law that the admitted documents need not be proved, however, the question that whether such injuries were caused due to rash or negligent driving of the accused has to be decided further
10. For the ingredients of rashness or negligence, PW1 Manoj Kumar, PW2/ Injured Ashok are the most vital witnesses of the prosecution. Though PW5 Kuldeep who was accompanying PW1 is also an eye witness in the instant case, however, PW5 has not identified the accused in the court on the ground that since the incident was nearly 05 years old, he did not remember the face of the accused. Moreover, no description of the accident or facts is given by PW5 in his examination in chief, therefore, PW5 testimony does not reflect any rashness or Digitally signed AKSHAY by AKSHAY SHARMA SHARMA Date: 2024.07.20 16:25:38 +0530 :12: negligence on part of the accused.
11. PW1 in his examination has stated that the driver of the crane/ accused had hit the injured who was walking parallel to the said crane on footpath, when the injured immediately step in front of the said crane because of which the crane ran over the left leg of the injured. In cross-examination by the Ld. APP, PW1 stated that the offending vehicle was coming on the wrong side of the road. Further, the injured PW2 Ashok in his examination had stated that he was walking on footpath and when he crossed the service road, one crane came and hit him from the back side and ran over his left leg. In the leading questions by the Ld. APP, PW2 stated that it is correct that horn was not blown by the accused and the accident took place due to the vehicle being driven in rash and negligent manner by the accused.
12. From the combined reading of the testimonies of PW1 and PW2, as well as the site plan which is Ex.PW7/B, two fold negligent conduct of the accused appears, firstly, is the driving of the vehicle/ crane on the wrong side and secondly is hitting the injured from back side. Both the aforementioned conduct of the accused reflects that the accused did not adopt the general duty of care, which he ought to have adopted while driving a heavy vehicle such as crane. Further, the fact that the injured sustained injuries so grievous in nature that his leg was crushed and subsequently amputated, indicates the negligence and rashness of the accused to be gross as even after hitting the injured, the accused did not stop the crane and went on to crush the leg of the injured.
13. Proceeding further, this court would like to highlight and discuss the points of defence taken by the accused in the testimony of Digitally signed AKSHAY by AKSHAY SHARMA SHARMA Date: 2024.07.20 16:25:46 +0530 :13: PW1. It was contended on behalf of the accused that PW1 has stated in his examination in chief that injured immediately stepped in front of the said crane because of which crane ran over the left leg of the injured. Further, it was pointed out on behalf of the accused that in the cross- examination, PW1 has stated "both the parties were at fault at the said accident. The crane was at a slow speed". On these grounds, it was contended that the accident took place due to fault of the injured and not the accused.
14. With respect to the contention of the defence, it is noted that contributory negligence is a defence under Civil Law and the doctrine of contributory negligence does not apply to criminal actions. In Tika Ram vs Rex, AIR 1950 ALLAHABAD 300, the Hon'ble Allahabad High Court had held :
"Now what may be called a negligent act' in civil proceedings is not necessarily so in criminal cases. The principles of liability governing civil actions based on negligence differ from those governing criminal liability in two important particulars, firstly, that negligence in a criminal case must be culpable and gross and not the negligence which is merely based upon an error of judgment, or arises because of defect of intelligence, and secondly, that the principle of the avoidance of liability when there is contributory negligence by the injured person is no defence in criminal law."
15. It is observed that a driver must anticipate reasonably foreseeable negligent act of road users, this anticipation would be more in Digitally signed AKSHAY by AKSHAY SHARMA SHARMA Date: 2024.07.20 16:25:54 +0530 :14: the case as the present one, when the accused driver was himself plying on wrong side. Even for the sake of argument, it is believed that the injured immediately stepped in front of the crane, that itself cannot become a ground to absolve the accused from Criminal Liability as accused was on the wrong side and moreover, no horn was blown by the accused. The duty of care imposed on the injured would certainly be of a very lesser degree as no individual can reasonably foresee that a vehicle coming from wrong side would hit he/she from behind. Comparatively, the accused driving a heavy vehicle such as a crane in the present case ought to have adopted all possible precautions.
16. Regarding the fact that the crane was at a slow speed and therefore, the accused cannot be said to be rash and negligent, it is noted that it is not necessary that speed of the vehicle will only determine that whether a person/ driver is rash or negligent. Reliance is placed on the judgment of Ravi Kapoor Vs. State of Rajasthan AIR 2012,SC 2986 in which the Hon'ble Appex Court held:
"Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279IPC is attracted."Digitally signed by AKSHAY
AKSHAY SHARMA
SHARMA Date:
2024.07.20
16:26:04 +0530
:15:
17. The main point to be considered is that the reckless conduct without adopting the duty of care and being indifferent to the consequences, is the main crux for the offence punishable u/s 279 and Section 338 IPC. The accused in the instant case while driving a heavy vehicle such as a crane in a wrong direction was at first instance at the wrong footing, his subsequent conduct of hitting the injured from behind, while the injured was crossing the road reflects that the general duty of care was not adopted by the accused. Needless to say, that the duty of care expected from the accused was of a greater degree and his breach of that duty has resulted in the unfortunate accident which consequently resulted in loss of limb by the injured.
18. The net effect of the above-discussion is that the testimonies of the most crucial prosecution witnesses establish the ingredients of rashness or negligence beyond reasonable doubt. Hence, accused Rahul s/o Ram Lal stands convicted for offence punishable u/s 279/338 IPC,1860.
Pronounced in the open court on 20.07.2024. Judgment contains total 15 pages, each signed by the undersigned.Digitally signed
AKSHAY by AKSHAY SHARMA SHARMA Date: 2024.07.20 16:26:15 +0530 (AKSHAY SHARMA) JMFC-02/SE/Saket/ND 20.07.2024