Delhi District Court
State vs . : Vinod on 15 May, 2012
IN THE COURT OF MS. APARNA SWAMI
METROPOLITAN MAGISTRATE02/NORTH
TIS HAZARI COURTS : DELHI
State Vs. : Vinod
FIR No. : 529/2007
U/s : 279 and 338 IPC
PS : Kashmere Gate
JUDGEMENT
1 Unique ID No. of Case : 02401R1294212008 2 Date of commission offence : 05.11.2007 3 Date of institution of the case : 16.07.2008 4 Name of the complainant : Ct. Ashok Kumar of PS Kashmere Gate 5 Name of accused, parentage & : Vinod son of Sh. Sukki Lal, R/o Address H. No. A2/164, Nand Nagri, Delhi 6 Offence complained of : Sec. 279 and 338 IPC 7 Plea of the accused : Pleaded not guilty 8 Date of reserving for order : 09.05.2012 9 Final order : Acquitted 10 Date of Judgment : 15.05.2012 FIR No. 529/07 1/ 13 JUDGMENT:
Accused Vinod son of Sh. Sukki Lal is chargesheeted with the allegations that on 05.11.2007 at about 3.50 pm, at ring road, Hanuman Setu, Slip Road, Yamuna Bazar, Delhi, within the jurisdiction of Police Station (herein after called as PS) Kashmere Gate, he was found driving one motorcycle bearing registration number DL7SAJ2236 in 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, he caused grievous injuries to one pedestrian namely Jamil Khan and thus has allegedly committed the offences punishable under Sec. 279 and 338 of Indian Penal Code (herein after called as IPC).
The investigation was carried out and after its completion charge sheet was filed in the court. In compliance of Sec. 207 Cr.PC, copy of the charge sheet along with documents were supplied to the accused. On 25.02.2010, Notice for the alleged commission of offence punishable under Sec. 279 and 338 IPC was served upon accused Vinod, to which he pleaded not guilty and claimed trial.
2. The Prosecution Evidence was recorded. In order to prove the allegations against the accused Vinod, prosecution has examined as many as Nine (9) witnesses. Briefly the evidence on record is reproduced as under: 2.1 PW 1 is SubInspector (SI) Kamal Singh. On 05.11.2007 he was FIR No. 529/07 2/ 13 working as duty officer at PS Kashmere Gate, having duty hours from 8.00 am to 8.00 pm. On receiving of rukka at about 5.30 pm from Ct. Ashok Kumar sent by SI Man Chand, present FIR was registered, computer copy of which on his testimony is exhibited as PW 1/A. He was not crossexamined despite opportunity.
2.2 PW 2 is Dr. Deepak Kumar Singh, CMO, Sushruta Trauma Centre. He deposed that on 05.11.2007 at about 4.20 pm, a patient was brought to him with alleged history of RTA. On his testimony, the MLC of injured is Ex. PW 2/A. On local examination of patient, he found: ● Deformity over left arm.
● Left radial pulse not pulpable.
The patient was referred to Ortho, General Surgery and Neuro Surgery for further management. He further deposed that he also examined patient Vinod (i.e accused). On his testimony, MLC of accused is Ex. PW 2/B. He was not crossexamined despite opportunity.
2.3 PW 3 is Assistant (Retd.) SubInspector (Technician) Davender Kumar. On 10.11.2007, he mechanically inspected the motorcycle bearing registration number DL7SAJ2236, his detailed report on his testimony is Exhibited as PW 3/A which mentions: ● Fresh damages on left rear indicator light damaged FIR No. 529/07 3/ 13 ● Right side body scratched ● Headlight plastic cover damaged.
He was not crossexamined by Ld. Counsel for the accused. 2.4 PW 4 is Constable (Ct.) Ashok Kumar, who is the complainant in the present case. He deposed on oath that on 05.11.2007, he was posted as Constable at PS Kashmere Gate and was on patrolling duty at Beat No. 2, while patrolling when he was going towards Ring Road, Hanuman Setu via slip road at about 3.50 pm, he saw one motorcycle coming from the side Nigam Bodh Ghat at a fast speed on slip road and it struck against one pedestrian who was crossing the road. Due to the impact, the pedestrian fell down on the road and became unconscious. This witness deposed the registration number of the offending motorcycle as DL7SAJ2236 and identified the accused Vinod as the driver of the offending motorcycle at the time of incident. Thereafter CATS Ambulance came at the spot and shifted the injured as well as accused to the hospital. Later, Investigating Officer came at the spot and he narrated whole incident to him. His statement was recorded as Ex. PW 4/A. Investigating Officer prepared site plan at his instance, which is Ex. PW 4/B. The motorcycle and its RC were taken into possession vide memo Ex. PW 4/C and 4/D respectively. Arrest of the accused was made at the instance of this witness vide arrest memo Ex. PW 4/E and his personal search was conducted vide memo Ex. PW 4/F. FIR No. 529/07 4/ 13 He was crossexamined at length by Ld. Counsel for the accused. 2.5 PW 5 is Amit Kumar, who is the registered owner of offending motorcycle bearing registration number DL7SAJ2236. He deposed that on 05.10.2007, the said motorcycle was taken by his brother Vinod Kumar. Later, he received information that his brother Vinod Kumar has met with an accident at Yamuna Bazar, Kashmere Gate. He went to the hospital where Notice under Sec. 133 of M. V. Act was tendered upon him. He handed over RC of the said motorcycle to the police, which was taken into possession by the Investigation Officer vide seizure memo Ex. PW 4/D. He got released the offending motorcycle on superdari vide superdarinama Ex. PW 5/B. He was crossexamined by Ld. Counsel for the accused. 2.6 PW 6 is Ex. DHG Hari Chand Giri. He deposed that on 05.11.2007, he was posted in PS Kashmere Gate, at about 3.30 pm he received information regarding an accident at Ring Road near Hanuman Mandir, Kashmere Gate. He went to the spot where he met SI Man Chand and Ct. Ashok Kumar. He was asked to stay on the spot with the offending vehicle and SI Man Chand and Ct. Ashok Kumar went to the hospital where the injured was shifted. After some time, SI Man Chand prepared rukka and got the case registered through him.
He was crossexamined by Ld. Counsel for the accused. 2.7 PW 7 is SubInspector (Retd.) Man Chand, who is the FIR No. 529/07 5/ 13 Investigation Officer (IO) of the present case. On 05.11.2007 after receiving information vide DD No. 22 A (Ex. PW 7/A), he along with DHG Ct. H. C. Giri reached the spot i.e Hanuman Setu, Slip Road, Kashmere Gate. There he found one motorcycle bearing registration number DL7SAJ2236 make Bajaj Discover and one PCR Van. He was informed by PCR Van Officials that injured had been shifted to Trauma Centre hospital. He also met Ct. Ashok (PW 4), who stated himself to be an eye witness of the incident. He went to Trauma Centre and obtained the MLC of two injured person, one of them 'Unknown', on which Doctor concerned opined patient 'unfit for statement'. He came back at the spot, recorded the statement of Ct. Ashok Kumar (Ex. PW 4/A), prepared rukka (Ex. PW 7/B) and got the case registered through DHG Ct. Harish Chand Giri. He prepared site plan Ex. PW 4/B and took into possession the offending motorcycle vide seizure memo Ex. PW 4/C. He tendered Notice under Sec. 133 of MV Act (Ex. PW 7/B) upon registered owner namely Amit Kumar, who gave his reply Ex. PW 5/A. He got conducted the mechanical inspection of the offending motorcycle and obtained the Mechanical Inspection Report Ex. PW 3/A. Accused was arrested and his personal search was conducted vide memos Ex. PW 4/E and 4/F. After completion of investigation, charge sheet was filed in the court through SHO concerned.
He was crossexamined at length by Ld. Counsel for the accused. FIR No. 529/07 6/ 13 2.8 PW 8 is Assistant SubInspector (ASI) Laxmi Narayan. On 05.11.2007, he was posted as Head Constable at PS Kashmere Gate and was working as Duty Officer, having duty hours from 9.00 am to 5.00 pm. On that day at about 1.53 pm, he received information through wireless operator regarding an accident on road leading towards Rajghat from Hanuman Mandir Flyover, Kashmere Gate. He reduced the said information into writing vide DD Entry No. 22 A. On his testimony, the attested copy of DD Entry No. 22 A is Ex. PW 7/A. He was not crossexamined despite opportunity.
2.9 PW 9 is Jitender Kumar, who is one of the main witness of the prosecution, being pillion rider with the accused at the time of incident. He deposed on oath that 05.11.2007 he was with his friend Vinod and were going on a motorcycle No. 2236. In the evening at about 4.00 pm, when they reached near Hanuman Setu, slip road, the motorcycle was moving near the divider and suddenly a pedestrian came in front of the motorcycle and met with an accident because of which the pedestrian sustained injuries. Due to the impact the motorcycle lost its balance resulting injuries to the accused Vinod and minor injuries to him. Later police official came at the spot and the injured were shifted to the Trauma Centre by CATS Ambulance. He further deposed that the speed of the motorcycle was about 3040 Kmph and the accident was caused due to fault of the injured as he was under influence FIR No. 529/07 7/ 13 of alcohol and suddenly came in front of the motorcycle.
With permission of the court, this witness was crossexamined by Ld. APP for State, as he was resiling from his earlier statement. In the cross examination by the State, he affirmed to his stand and submitted that incident date 05.11.2007 did not take place due to rash and negligent driving of accused Vinod.
He was not crossexamined by Ld. Counsel for the accused despite opportunity.
During the course of trial, efforts were made to trace out the injured Jamil Khan but despite best efforts, injured was untraceable. After examining the remaining witnesses, the Prosecution Evidence was closed and all the incriminating circumstances were put to the accused when his statement was recorded under Sec. 313 Cr.PC, wherein he denied all the evidence against him as false and took the plea that he has been falsely implicated in this case. The accident took place as pedestrian Jamil Khan suddenly came in front of his motorcycle in drunken condition. However, he did not prefer to lead evidence in his defence.
4. The final arguments were heard and case file has been perused thoroughly.
5. Before proceeding further, it is relevant to discuss Sec. 338 IPC, which reads as under: FIR No. 529/07 8/ 13 S. 338 Causing grievous hurt by act endangering life or personal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
6. In order to secure conviction of accused Vinod under Sec. 338 IPC, requirement of Sec. 279 IPC is to be primarily satisfied by the prosecution. Sec. 279 IPC requires the commission of rash and negligent act by the accused. What is 'Rash and Negligent Act', is nowhere defined in Indian Penal Code but case laws on the subject helps in crystallizing the law in this regard. It is relevant to quote the observation in the judgment of Apex Court in State of Karnataka Vs Kumayian 2010 Crl. LJ 3376, wherein it was observed that: "The expressions 'Rash and Negligence' have not been defined in the Penal Code. However, in catena of decisions, the Apex Court has explained the meaning of these expressions. Negligence is generally defined to be, "breech of duty caused by omission to do something which a reasonable man guided by those FIR No. 529/07 9/ 13 considerations which ordinarily regulate the conduct of the human affairs would do or doing something which a prudent and reasonable man would not do.
Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect of failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
7. Reverting back to the facts of the present case and evidence on record. PW 4 Ct. Ashok Kumar is material witness of prosecution. In his testimony, he deposed that the offending vehicle (i.e motorcycle bearing registration number DL7AAJ2236) was at a high speed but he did not mention anything about the manner of the driving by the accused. From his FIR No. 529/07 10/ 13 deposition, nothing can be adduced so as to establish that offending vehicle was driven by the accused in rash and negligent manner. Simply deposing that the vehicle was driven in rash and negligent manner, do not fix any culpability under the present criminal law system. Also, the law is well settled that mere high speed do not establish rashness and negligence driving. [Reliance is placed upon the cases of State of Karnataka Vs Satish 1999 (1) JCC SC 97 and Bal Kishan Vs State 2008 (4) JCC 2453].
Further, it has been stated by PW 4 Ct. Ashok Kumar that he was on patrolling duty at the time when the incident took place, but the prosecution has not placed on record any proof to establish that in fact he was on patrolling duty on that day. This witness has also affirmed that he had not called CATS Ambulance on the spot for taking injured to the Trauma Centre, even though he witnessed the incident. Thus, prosecution has failed to establish the very presence of PW 4 Ct. Ashok Kumar and failed to explain his conduct after the incident.
8. The testimony of PW 6 Ex. DHG Hari Chand Giri and PW 7 Retd. SI Man Chand is important in the present case. They were not the eye witnesses of the incident but joined the investigation. The analyses of their testimony shows various contradictions in their evidence. It has been deposed by PW 7 SI (Retd.) Man Chand that after receiving the information, he along with PW 6 Ex. DHG Hari Chand Giri reached the spot, but PW 6 FIR No. 529/07 11/ 13 states that after receiving the information, when he reached the spot PW 4 Ct. Ashok Kumar and PW 7 SI Man Chand were already present there.
Further, PW 6 deposed that he remained at the spot so that PW 7 and PW 4 could go to the hospital but PW 7 stated that he went to Trauma Centre and left PW 4 and PW 6 at the spot.
9. Another material witness of the prosecution in the present case is PW 9 Jitender Kumar. He was the pillion rider of accused at the time of incident. He deposed that the accident resulted due to the fault of injured Jamil Khan as he suddenly came in front of their bike in drunken condition, which led injuries to him as well as accused and minor injuries to this witness. Hence, this witness has not denied the happening of the incident but his testimony establishes that the incident which happened on 05.11.2007 was a pure accident and not caused by rash and negligent driving of the accused Vinod.
10. It has also been observed earlier that during the trial, the injured was untraceable despite best efforts due to which his evidence is not on record.
11. In criminal law, the cardinal principle of criminal jurisprudence is that an accused is presumed to be innocent and burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubts. [Reliance is placed on Jarnail Singh Vs. State of Punjab (SC) 1996 (1) FIR No. 529/07 12/ 13 RCR (Crl) 465] Thus the contradictions as highlighted above in the evidence on record and non mentioning of the manner of driving by the accused, cast serious doubt on the story of prosecution. In my opinion, prosecution has failed to prove the case against the accused Vinod beyond reasonable doubt, thus accused Vinod is acquitted from the charges against him under Sec. 279 and 338 IPC in this case.
11. Accused is on bail. His bail bonds stand canceled. Surety be discharged. Original document, if any, be returned on proper and receipt and identification. Accused is admitted to bail under Sec. 437 A Cr.PC on his furnishing personal bond and surety bond in the sum of Rs. 10,000/ each. He seems time for furnishing bail bonds.
12. Put up for furnishing bail bonds under Sec. 437 A Cr.PC, on 18.05.2012.
Dictated and Announced in the open (APARNA SWAMI) court on 15.05.2012 MM02/NORTH/DELHI FIR No. 529/07 13/ 13 FIR No. 529/07 14/ 13