Delhi District Court
State vs Abhishek Mishra on 12 July, 2024
IN THE COURT OF MS. KRATIKA CHATURVEDI
JUDICIAL MAGISTRATE FIRST CLASS-04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Abhishek Mishra
FIR No. : 749/2015
U/s : 279/338/186/353 IPC & 3/181 MV Act
P. S. : Dwarka South
1. CNR No. of the Case : DLSW020372272018
2. Date of commission of offence : 30.09.2015
3. Date of institution of the case : 29.09.2018
4. Name of the complainant : Ct. Anil Kumar
5. Name of accused, parentage & : Abhishek Mishra S/o
address Sh. Takkan Mishra R/o
RZ-115B, Gali No.4, Raj
Nagar-I, Palam Delhi.
6. Offence complained of : 279/338/186/353 IPC &
3/181 MV Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Convicted
9. Date of final order : 12.07.2024
Argued by:- Mr. Manish Sidhawat, Ld. APP for the State
Mr. A.K. Mishra and Mr. Nishikant Mishra, Ld.
Counsels for accused.
FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 1 of 30
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX:
1. Briefly stated, the case of the prosecution is that on 30.09.2015 at about 4.40 am in front of CCRJ, Sector 7, Dwarka, the accused person i.e., Abhishek Mishra was found driving the vehicle bearing no. DL9SAY 7382 in a rash and negligent manner without helmet and on seeing Ct. Anil Kumar given signal to stop the accused but accused had not stopped his scooty and rather accelerated the speed of the scooty and voluntarily hit Ct. Anil Kumar and due to the impact, Ct. Anil Kumar sustained grievous injuries. It is further alleged that the accused was found driving the scooty without driving license. As such, it is alleged that the accused, Abhishek Mishra has committed the offence punishable under section 279/338/186/353 of the Indian Penal Code, 1860 (hereinafter, "IPC") and Section 3/181 of the Motor Vehicles Act (hereinafter "MV Act") for which FIR No. 749/2015 was registered at the police station Dwarka South, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED:
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused was filed. The court took the cognizance against the accused and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 2 of 30 (hereinafter, "CrPC"). On finding a prima facie case against the accused person, notice under section 279/338/186/353 of IPC and 3/181 MV Act was framed against the accused on 18.09.2019. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 ASI Anil Kumar PW-2 Ct. Rajesh PW-3 ASI Devender PW-4 Inspector Mukesh Kumar PW-5 Inspector Birender Singh DOCUMENTARY EVIDENCE Ex. PW1/A Complaint Ex. PW1/B Site plan Ex.PW2/A Seizure memo of scooty Ex.PW2/B Seizure memo of RC of vehicle Ex.PW4/A Rukka Ex.PW4/B Notice u/s 41A Cr.PC Ex.PW5/A Request letter Ex.P-1 Photographs of scooty ADMITTED DOCUMENTS Ex.P/A/1 FIR No.749/15 alongwith certificate u/s 65B of Indian Evidence Act Ex.P/A/2 & DD No.27A dated 30.09.2015 abd DD P/A/3 No.17 dated 30.09.2015 Ex.P/A/4 MLC No.923/15 Ex.P/A/5 Mechanical inspection report of scooty Ex.P/A/6 Complaint u/s 195 Cr.PC
4. PW-1 ASI Anil Kumar, has deposed that on 30.09.2015, he alongwith HC Devender were on traffic duty opposite CCRT Dwarka, Sector 7, Route No. 215 for the purpose of checking.FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 3 of 30
While vehicle checking on the said road at about 4.45 PM, two boys without helmet came on the scooty from the side of Ramphal Chowk and on seeing them without helmet, he shown him his hand as instruction to stop the scooty but instead of stopping the scooty the speed of the same was accelerated by the rider of the scooty. Due to the same the scooty hit him and he fell down on the road and sustained the injury on his right hand. The scooty rider and pillion rider alongwith scooty fell down on the road. The registration number of the scooty is DL-9SAY7382. He was taken to the Bhagat Chandra Hospital for treatment. Site plan was prepared at his instance which. He has correctly identified the accused. In his cross-examination, he stated that he had joined the police department as Constable in the year 1988. He started doing as a Traffic Officer in the year 2014. The training was given to him before giving him duty as a traffic official. Checking can be done at any place there was complaint of traffic violation. There was direction from their department regarding points of traffic violation but no copy of such points were handed over to them. No particular direction was given to them regarding the point of the checking whereas the point of the checking was decided by the TI. The TI prepared the list of the points and then given them duty on such points. Record is also kept by the TI as to the points where the duty have to be performed by the traffic officials. Point can be anywhere on the road. It was taught to them in their training that they should not enter on the road where the vehicles pass through very speedily. There was no cut at the point of incident. There was not much traffic on the road FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 4 of 30 where the incident took place. He could not comment whether people ride/drive the vehicles very speedily when there is not much traffic on the road. He was standing near the point A. The scooty was coming from the side of Ramphal Chowk in high speed and rider of the scooty was riding in zig zag manner. He could not comment on the colour of the signal of the traffic light which was at the distance of approx. 500/700 meter from the point where they were standing. He had not asked names of those two persons as he had sustained the injuries in the incident. HC Devender was also performing traffic duty alongwith him at the time of the incident. HC Devender had not sustained any injury in the incident. He, accused and the pillion rider where taken to the Bhagat Chandra Hospital in the PCR van. He does not know whether those two persons received any injury or not. Those two persons were not inquired in his presence by the IO. He cannot tell whether accused had the driving license or not. He had not recorded the statement of any other persons in his presence. He had not joined the investigation after the day of the incident.
5. PW-2 Ct. Rajesh has deposed that on 30.09.2015, he was posted as Constable at Dwarka South. On that day, he was performing emergency duty alongwith SI Mukesh and his duty hours were 8.00 AM to 8.00 PM. At about 5.00 PM, IO SI Mukesh received a DD no. 27A and thereafter, he along with IO reached at the spot i.e. in front of CCRT, Sector 7, Dwarka, New Delhi. At the spot, one scooty bearing no. DL- 9SAY 7382 was found present. At the spot, they came to FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 5 of 30 know that the victim had already been taken to the Bhagat Chandra Hospital. IO left for the Bhagat Chandra Hospital and he remained at the spot for its preservation. After some time, IO returned to the spot and handed over to him the rukka at around 7.45 PM for registration of FIR. He went to the PS and after getting FIR registered, he came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. IO seized the scooty and the RC of the vehicle from the accused. He has correctly identified the accused. In his cross-examination, he stated that he was present at the PS when the information was received by the IO. They reached at the spot in the personal vehicle of the IO whose registration number he does not know and reached at the spot at around 5.05 PM. Public person told the IO about the victim being taken to the hospital, however, he does not know the name of that person. He does not remember that IO asked how many public persons about the incident in question. When they reached at the spot, public persons present there but he could not tell the exact number of the same. IO left the spot for hospital at about 5.15 PM and returned to the spot at about 7.30 PM. He does not remember whether statement of any person was recorded in his presence or not. The statement of complainant was not recorded in his presence. He reached at the PS alongwith rukka at about 7.55 PM. He returned to spot at about 8.30 pm. Accused was interrogated in his presence by the IO.
6. PW-3 ASI Devender has deposed that on 30.09.2015, he was posted at Dwarka Traffic Circle as HC. On that day, he alongwith Ct. Anil were at duty opposite CCRT Sector 7, FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 6 of 30 Dwarka, New Delhi. At about 4.30 PM, while they were checking the vehicles, two persons came on scooty from Ramphal Chowk side and they were not wearing helmet. They signaled them to stop. Instead of stopping, the driver of scooty accelerated the scooty and hit Ct. Anil. The registration of scooty was DL-9SAY-7382. The scooty fell on the road. Ct. Anil fell on the road and got injured and he made a call on 100 number. The driver of scooty revealed his name as Abhishek Mishra. Ct. Anil was shifted to Bhagat Chandra Hospital, Palam in the PCR. They reached at the spot and recorded the statement of Ct. Anil. He alongwith the IO came back to the spot and he showed the spot to the IO. Site plan was prepared at his instance by the IO. Accused was present at the spot at that time also. He has correctly identified the accused. In his cross-examination, he had joined his services on 13.09.1998. He got transferred at Dwarka Traffic Circle in 2015. He alongwith Ct. Anil were given the duties to be present at the spot on the said day. The name of the said point where they were standing is Sector 7/9 Red Light, Dwarka. They had a proper duty roster in that regard. IO had not asked for his duty roster from him. The distance between the spot and the red light is 500 meters approximately. He had not paid attention on the red light as he was standing before the red light and his back was facing the red light. Vehicles were passing by at the spot. They were both checking the vehicles and he was having the challan machine. The public persons helped them to shift the accused and Ct Anil at the side of the accused. It took them 5-10 minutes to shift them at the side of the road. After shifting them, he dialed 100 number. He FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 7 of 30 shifted Ct Anil to the hospital in the PCR. Accused person was left at the spot. He came back to the spot again at about 8.00 PM along with IO. No police officials were present with the accused when he went to the hospital. Statement of Ct Anil was recorded by the IO in his presence at the Hospital. He does not remember the time when it was recorded. Accused was interrogated by the IO at the spot in his presence. He does not remember the time when his statement u/s 161 Cr PC was recorded. He does not remember the name of other rider of the scooty.
7. PW-4 Inspector Mukesh Kumar has deposed that on 30.09.2015, he was posted as SI at PS Dwarka South. On that day, he received a DD No. 27A regarding accident in front of CCRT Sector 7, Dwarka, New Delhi and thereafter, he alongwith Ct. Manoj reached at the spot where one scooty bearing no. DL-9SAY7382 was found present. Victim was not present at the spot as he had already been shifted to the Bhagat Chandra hospital. Thereafter, he went to the Bhagat Chandra Hospital and he met victim Ct Anil. He recorded his statement. Thereafter, he returned to the spot and there HC Devender and accused were found present and at the spot, he prepared the rukka and handed over the same to Ct Manoj for registration of FIR. Ct. Manoj went to the PS and after getting FIR registered, he came back at the spot and handed over to him copy of FIR and rukka. He prepared the site plan at the instance of HC Devender. HC Devender was present at the spot along with the victim Ct Anil who had sustained injuries at the spot. He seized the motorcycle and also seized the RC of the scooty. He served a notice u/s 41 A Cr PC on accused.
FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 8 of 30They returned to the PS and motorcycle was deposited with the MHC(M). He has correctly identified the accused. In his cross-examination, he stated that he was present at the PS when he received DD No. 27A. They reached at the spot on his personal motorcycle. At the spot, nobody was found. Public persons were present near the spot. Public persons told him about the place of the accident. No public persons joined the investigation and left the spot without disclosing their names and addresses. He tried to know the name of public persons but none of them disclosed their names and they were not interested to become the witness in the investigation proceedings. HC Devender told him that victim was taken to the Bhagat Chandra Hospital on phone as he dialed the 100 number. No mobile number is mentioned in the DD no. 27A. At the hospital, he met the injured Ct Anil. He remained at the hospital for about ½ hour. The victim was not discharged from the hospital till he remained in the hospital. The injured told him about the registration number of scooty in his complaint. He had not met HC Devender at the hospital. HC Devender was not present at the spot when he visited the spot for the first time. He returned back to the spot from the hospital at about 8.00 PM. He had not asked HC Devender about his whereabouts of the time when he visited the spot for the first time. Only HC Devender as a witness was present at the spot when he returned back at the spot from the hospital. Public persons were passing by the road when the accident took place. He had not obtained the mobile location of victim and HC Devender as well as the accused regarding the presence of all three persons at the spot. No public persons FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 9 of 30 ever joined the investigation in the present case. He had not verified the DD NO.17 dated 30.09.2015. Ct Manoj brought the scooty to the PS. He had not clicked the photographs of the spot.
8. PW-5 Inspector Birender Singh, has deposed that in the year 2018, he was posted as SI at PS Dwarka South. The investigation of the present case was marked to him and thereafter he received the file from the MHC(R) and perused the same. He applied for the sanction u/s 195 Cr.PC from the concerned authority. He obtained the complaint u/s 195 Cr.PC of the ACP Traffic South West District and placed the same on record. Since, investigation was already been done by the previous IO, therefore he prepared the charge-sheet and filed the same before the court. In his cross-examination, he stated that he had only collected the complaint u/s 195 Cr.PC and have not done any other investigation in the present case.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE:
9. Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded on 15.04.2024 without oath under section 281 r/w 313 CrPC, wherein he has stated that he is innocent and has falsely been implicated in the present case. He further stated that he was not riding the offending vehicle and was sitting behind and his brother was riding the same. He further stated that the police official had come suddenly in front of them and due to which they had FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 10 of 30 fallen. He further stated that he wanted to lead defence evidence.
10. DW-1 Abhishek Mishra, has deposed that on 30/09/15, he was coming from Ramphal Chowk to Dwarka Sector 7 on scooty bearing No. DL9SAY 7382. The scooty was driving by his brother namely Vikash Mishra and he was riding on the back side of the scooty. He crossed the market Sector 7 Ramphal Chowk suddenly traffic police came in front of our scooty and gave direction to stop the scooty. His brother stopped the scooty. The police officer demanded driving Licence and other documents of the scooty. His brother given all the documents of the scooty including the Driving Licence. At that time, he had given his learning driving licence. After that, The police officer asked them to come police station along with scooty. Thereafter he and his brother went to the police station. Police officer taken his signature on blank paper. Later he came to know that the police officer implicated him in the present false case. He and his brother have nothing done wrong at any point of time and nothing was happened at alleged in the present FIR. In his cross- examination conducted by the State, in the year 2015, he was studying in Engineering and was in third year at Indraprastha University. His elder brother Vikas was doing BCA in the year 2015. His brother Vikas was riding the scooty. He was having driving license. He was having learning license with him. He was stopped by police official between Sector 7 Ramphal Chowk Market and red light Sector 7. There were two police officials who stopped them and they came in front of their scooty all of sudden. His brother stopped this scooty.
FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 11 of 30Those police official demanded documents of scooty and driving license of his brother. They had shown all the documents of the scooty to them. They were not wearing the helmet at the time when they stopped by the police officials. Name of one police official was Anil. The police had not demanded any money from him and his brother. No arguments or quarrel took place between them and the police officials. They were traffic police officials. Those police official asked them to accompany them to the police station. At the Police station also, no quarrel or arguments took place between them and the police officials who were met them at the PS Dwarka South Sector 9 Dwarka. He does not know the name of those police officials. Police asked him to provide his personal details like name, father's name and address etc. Only above-mentioned details were sought from him and when he provided those details to them, he was asked to leave. The name of police official who asked him about his personal details was SI Mukesh. He was not sure what documents of scooty were taken by the police officials. License of his brother was taken by the police official at the PS. Again said he was not sure whether the license of his brother was taken or not. Police had not seized the copy of his learning driving license. Scooty is in name of his brother. He came to know that one case is registered against him on the same day at the PS when they were present there. He was not told by the police that the case was registered against him. No case was registered against his brother Vikas Mishra. Even after that he never came to know that why the present case was registered against him.
FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 12 of 3011. DW-2 Vikas Mishra, has deposed that on 30/09/15, he was coming from Ramphal Chowk to Dwarka Sector 7 on scooty bearing No. DL9SAY7382. The scooty was driving by him and his brother was riding on the back side of the scooty. They crossed the market Sector 7 Ramphal Chowk suddenly traffic police came infront of their scooty and gave direction to stop the scooty. He stopped the scooty. The police officer demanded driving Licence and other documents of the scooty. He gave all the documents of the scooty including the Driving Licence. At that time his brother had given his learning driving licence. After that, the police officer asked them to come police station along with scooty. Thereafter he and his brother went to the police station. Police officer taken his signature and his brother's signature on blank paper. Later he came to know that the police officer implicated his brother in the present false case. However, his brother nothing done wrong and also not driving the said scooty. He and his brother have nothing done wrong at any point of time and nothing was happened at alleged in the present FIR. In his cross- examination conducted by the State, in the year 2015, he was doing BCA and was in third of the said course in the year 2015. He was riding the scooty and he was stopped by police official between Sector 7 Ramphal Chowk Market and red light Sector 7. There were two police officials who stopped them and they came in front of their scooty all of sudden. He stopped his scooty. Those police official demanded documents of scooty and driving license of his brother. They had shown all the documents of the scooty to them. They were not wearing the helmet at the time when they stopped by FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 13 of 30 the police officials. Name of one police official was Anil. Police had not demanded any money from him and his brother. No arguments or quarrel took place between them and the police officials. They were traffic police officials. Those police official asked them to accompany them to the police station. They went to the PS on their scooty. At the Police station also, no quarrel or arguments took place between them and the police officials who were met them at the PS Dwarka South Sector 9 Dwarka. One police official at the PS demanded marksheet of 10th standard of his brother and some other documents of both of them. He went to his house and after sometime returned to the PS alongwith document demanded by the police official. One case was registered against his brother but he does not know what offence was charged. His father arrived at the PS at the night. Police official had not informed his father at what offences were charged against his brother in the case lodged against him. He signed on the copy of his aadhar card and driving license. He does not know the name of the police official who asked him to bring the document from his house. He does not know whether signature of his brother was obtained or not on any document. His brother had not told him me that whether his signature was obtained by the police on any document or not. He had not signed any other document other than the copy of aadhar card and driving license. Again said, he had signed 1-2 documents but he could not tell the nature of the same. Other than above-mentioned documents he had not signed any document. His RC was seized by the police. No other document was seized by the police.
FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 14 of 30ARGUMENTS:
12. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
13. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
14. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE:
15.In order to bring home the charge against the accused for the offence punishable under Section 186/279/338/353 of the IPC and section 3/181 of the MV Act, the prosecution is required to prove the ingredients of the aforesaid offences. It becomes relevant to reproduce the said offences as under:
FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 15 of 30Section 186 - Obstructing public servant in discharge of public functions: Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section 279- Rash driving or riding on a public way:
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Section 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 impris-onment 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.
Section 353 Assault or criminal force to deter public servant from discharge of his duty- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 16 of 30 either description for a term which may extend to two years, or with fine, or with both.
Section 3/181 MV Act- Driving vehicles in contravention of section 3 or section 4: Whoever drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine [of five thousand rupees], or with both.
16. The prosecution is required to prove that the accused had obstructed the police official i.e. Ct. Anil Kumar who was performing his traffic duty by not stopping his scooty when he was riding the same without helmet and rather voluntarily hit the complainant and caused grievous injuries upon him and that he did not possess the driving license at the time of the alleged incident. Under Section 279 IPC, the factum of rash or negligent driving likely to endanger human life or cause hurt etc. is in itself the offence, under Section 338 IPC, grievous injuries upon the victim due to such rash or negligent driving.
17.Thus, the gravamen of the offences under Section 279/338 IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 17 of 30 State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what the amount of care and circumspection is which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. As noted above, "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 or 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."
18.Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173 . The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 18 of 30 generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
19.Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
20.Further, the import of the sections 186/353 is to punish persons who create obstruction in the discharge of duties of public servants. While Section 186 IPC envisages merely voluntary obstruction, section 353 IPC lays down an additional condition that such obstruction must be caused by assaulting or using criminal force against the public servant. In fact, the distinction between these two provisions has been clearly borne out in the case of Durgacharan Naik & Ors. Vs. FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 19 of 30 State of Orissa AIR 1966 SC 1775 by the Hon'ble Supreme Court as under-
"It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with contempt of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body."
21.In the present case, qua the offence under section 186 IPC, it is imperative to understand certain preconditions attached with the prosecution under Section 186 IPC so as to give credence to further discussion. Section 195 (1) (a) of the Code of Criminal Procedure bars court to take cognizance of an offence punishable under Section 186 IPC unless a complaint has been made in writing by the public servant or by another public servant to whom he is subordinate. In Makardhwaj vs. FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 20 of 30 State AIR 1954 Orissa 175, it has been held, "non-compliance of the requirements of Section 195 Cr.P.C. is fatal to the prosecution of offence punishable under Section 186 IPC ." However, it is an admitted position in the present case that the compliance of Section 195 CrPC has already been made vide Ex. P/A/6.
APPRECIATION OF EVIDENCE:
22.In the instant case, it is not in dispute that an accident had taken place and as a result the complainant i.e., PW-1, ASI Anil had sustained grievous injuries while he was instructing the accused to stop his scooty as he was not wearing the helmet. PW-1 has categorically deposed that on the date of the incident at around 4:45 p.m., while checking vehicles at the spot, he saw two boys without helmet on scooty coming from the side of Ramphal Chowk and when he showed his hand as instruction to stop the scooty, the accused instead of stopping the scooty had accelerated its speed and hit him due to which he fell down on the road and sustained injuries. PW-1 has correctly identified the accused and the photographs of the offending vehicle. Moreover, the accused has failed to produce the driving license of the time when the accident had occurred which itself suggest negligence on his part. The accused in his defence has only deposed that he was not driving the offending vehicle rather the same was driven by his brother, DW-2 Vikash Mishra, however he has not led any documentary evidence to rebut the case of the prosecution. Moreover, both DW-1 and DW-2 have deposed that neither any arguments had taken place with the police officials nor that the police officials had demanded any money from the FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 21 of 30 accused. There is no reason or motive as to why the complainant and other police officials will falsely implicate the accused leaving his real brother scot free when he was also present at the spot. It is clear as to why the accused wants to shift his liability as he was not possessing the license at the time of the accident which itself suggest his negligence.
23.It is trite law that it is not the opinion of the witness as regards the rash and negligent driving of the accused which is significant, but what is essential is the depiction of the manner in which the offending vehicle was being driven for which a reliance is being placed upon Kishore Chand Joshi Vs. State Crl. Rev. Petition 627/2016 pronounced on 12.11.2018 by the Hon'ble Delhi HC. In the present case, the testimony of PW-1 is further corroborated by the testimonies of PW-2 Ct. Rajesh and PW-3 ASI Devender who have deposed similarly to PW-1.
24.The Ld. Counsel for the accused has also contended that the testimony of prosecution witnesses cannot be relied upon as all are interested witnesses being the police officials. However, their testimony cannot be discarded merely on this aspect. In the instant case, PW-1, who is the victim had suffered grievous injuries had no reason to falsely implicate the accused. The contention that no other independent public person was made a witness in the present case or was joined by the IO during investigation is not acceptable as the prosecution has proved its case otherwise. In this regard, it would also be apposite to the reiterate the settled legal position that non-joining of independent witnesses cannot be FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 22 of 30 the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another V. State of Gujarat [AIR 1988 SC 696]. Further, it has again been reiterated by the Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State of Uttar Pradesh Crl. Appeal No. 502 of 2015 that non-examination of independent witnesses is not fatal to the case of the prosecution when other prosecution witnesses are found to be trustworthy and reliable. Further, the testimonies of the witnesses are indeed impeccable and corroborative of each other. Therefore, there is no reason to disbelieve the testimonies of PW-1, PW-2 and PW-3 when the same are found to be credible.
25.It has been further stated by Ld. Defence Counsel that there is no other public witness to prove the accident. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled that it stands on a higher footing. For appreciating the evidence of a victim, the Court has to bear in mind that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence was committed by the accused. Being the victim of the crime, he would be most keen to ensure that the real culprits do not go FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 23 of 30 scot free. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
26.Further, PW-4, Inspector Mukesh Kumar being the IO has further corroborated the testimony of the prosecution witnesses and has deposed that when he alongwith Ct. Manoj had reached at the spot, he found the offending vehicle and got to know that the victim had already been shifted to the Bhagat Chandra Hospital. After reaching the hospital, he recorded the statement of the complainant and then he again went to the spot and met PW-3 and the accused. Thereafter, he prepared the rukka and handed over to Ct. Manoj for registration of FIR. There is nothing on record to disbelieve his testimony.
27.Also, the prosecution has relied upon the site plan vide Ex.PW-1/B which shows the spot of the accident. There was FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 24 of 30 no improbable fact, which accused could cull out from the testimonies of the prosecution witnesses. Therefore, the testimonies of the prosecution witnesses are found to be trustworthy and reliable.
28.The Ld. Counsel for the accused has contended that the IO had not conducted a fair and proper investigation and there are material discrepancies in the investigation. The Ld. Counsel for the accused has contended that the he had not preserved the CCTV footage of the spot and that he has not placed on record the photographs of the spot. However, the same is not a material defect to disbelieve the case of the prosecution. Further, the site plan depicts the state of affairs as told by PW-1 which is further corroborated by the testimonies of PW-2 and PW-3 regarding the incident in question. It is a settled law that defective/ improper investigation by the investigating agency is solely not a ground for acquittal as it would tantamount to playing into the hands of the investigating officer if the investigation is designed to be defective. The Hon'ble Supreme Court in the case of C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investigation has observed as under, "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth.
FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 25 of 30The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
29.It is also pertinent to note that the Ld. Counsel has not been able to show any major contradictions in the testimonies of the prosecution witnesses so as to disbelieve their testimonies and even if he would have pointed out, it is a settled law that some minor contradictions are bound to occur when the witnesses are examined after a long gap of time from the date of incident. However, such minor contradictions cannot make the evidence unreliable. A reliance be placed upon the judgment of the Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, wherein it has observed as under :
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence.FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 26 of 30
Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "
30.It has also been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 27 of 30 horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
31.In the present case also, there is no major contradiction noted in the testimony of the prosecution witnesses. Their testimonies are cogent and convincing. There is no reason to doubt their testimonies. The MLC of the victim is also on record. Perusal of the MLC vide Ex. P/A/4 would show that the nature of injury as grievous in nature to the victim Anil Kumar.There appears no reason as to why the complainant would falsely implicate innocent person while leaving the real culprit unpunished.
32.The accused during his examination under Section 281 r/w 313 Cr.P.C., has stated that he has falsely been implicated in the instant case. Further, he has not led any substantive evidence in support of his defence to show that the incident had occurred not due to his negligence or rashness or that he was not present at the spot when the prosecution has proved it otherwise. The burden to prove his defence was on the accused, which he has failed to do so.
33.In the present case, for the aforesaid reason, in light of the testimonies of the prosecution witnesses and defence FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 28 of 30 evidence, there is no specific reason to disbelieve the testimony of the victim when the same is otherwise credible and trustworthy. Therefore, the lapses which have been pointed out by the Ld. Counsel for the accused does not materially affect the testimony of the prosecution witnesses and the same leads to the conclusion that the accused had obstructed the police official while he was performing his official duty as the accused had not stopped his scooty rather accelerated its speed and had voluntarily hit the victim and that the accused was riding his vehicle in a such rash and negligent manner without the driving license that it had caused the grievous injuries to the victim, Anil Kumar. With respect to the offences under section 3/181, the accused had himself stated that he possessed the learner driving license, however, he had failed to produce even the said learner license.
CONCLUSION
34.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused beyond reasonable doubt. The testimony of the complainant and other witnesses is coherent and directly implicates the accused. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences beyond reasonable doubt.
35. Resultantly, the accused, Abhishek Mishra is hereby found guilty for offences under section 186/279/338/353 of the FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 29 of 30 Indian Penal Code, 1860 and section 3/181 of MV Act and stands convicted accordingly. Let the convict be heard separately on sentencing.
Announced in open court on 12.07.2024 in the presence of the accused.
(Kratika Chaturvedi) Judicial Magistrate First Class-04, Dwarka, Delhi/12.07.2024 Note:- This judgment contains 30 pages and each page has been signed by me.
FIR No. 749/2015, PS Dwarka South State Vs. Abhishek Mishra Page 30 of 30